WEBER & LIPSON
[2014] FamCA 390
•12 June 2014
FAMILY COURT OF AUSTRALIA
| WEBER & LIPSON | [2014] FamCA 390 |
| FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – Where both parties allege family violence – Where the evidence does not support a finding of family violence. FAMILY LAW – CHILD SUPPORT – Child support agreement – Delay in registration of the child support agreement – Where arrears accrued as a result of delay in registration and subsequent operation of administrative assessment of child support – Where the father sought a departure order from the arrears accrued – Where special circumstances found to justify a departure from assessed liability. |
| Family Law Act 1975 (Cth) Child Support Assessment Act 1989 (Cth) |
| APPLICANT: | Mr Weber |
| RESPONDENT: | Ms Lipson |
| FILE NUMBER: | MLC | 5453 | of | 2012 |
| DATE DELIVERED: | 12 June 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 12, 13 & 14 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Stoikovska |
| SOLICITOR FOR THE APPLICANT: | Septimus Jones & Lee |
| COUNSEL FOR THE RESPONDENT: | In Person |
| SOLICITOR FOR THE RESPONDENT: | In Person |
Orders
1.That all prior parenting orders relating to the children C born … 2008 and D born … 2009 shall be and are hereby discharged.
2.That the mother and the father have equal shared parental responsibility for the children.
3.That the children live with and communicate with the father as follows:-
(a) From the date of these orders until 6 October 2014 in a two-week alternating cycle as follows:-
(i)In week one from the conclusion of child care/kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of child care/kindergarten/school or 9.30 am Friday;
(ii)In week two from the conclusion of child care/kindergarten/school or 3.30 pm Thursday until 6.30 pm Sunday;
(b) As and from 6 October 2014 until 26 June 2015 in a two-week alternating cycle as follows:-
(i)In week one from the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Friday; and
(ii)In week two from the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Monday;
(c) As and from 26 June 2015 until 11 July 2016 in a two-week alternating cycle as follows:-
(i)In week one from the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Friday; and
(ii)From the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Tuesday;
(d) As and from 11 July 2016 on a week about basis with changeovers to occur at the conclusion of school or 3.30 pm Friday (whichever is the earlier) each;
(e) For one half of each of the term school holidays as agreed and failing agreement:-
(i)For the first half of the school term holidays in 2014 and each alternate year thereafter from the last day of term until 12.00 noon on the middle Saturday of the term holiday period; and
(ii)For the second half of the school term holidays in 2015 and each alternate year thereafter from 12.00 noon on the middle Saturday of the term holiday period until the commencement of child care/kindergarten/school or 9.00 am on the first day of the new school term;
(f) During the long summer vacation period as follows:-
(i)For the period commencing in December 2014, the father’s time pursuant to order 3(b) continues until 6.00 pm Boxing Day and thereafter the children live with the father for the following periods:-
A.From 6.00 pm 26 December 2014 until 6.00 pm 2 January 2015;
B.From 6.00 pm 9 January 2015 until 6.00 pm 16 January 2015; and
C.From 9.00 am 26 January 2015 until 6.00 pm 28 January 2015;
(ii)In the long summer vacation period commencing in December 2015, and each alternate year thereafter for one half of the said period as agreed and failing agreement for the second half in the period commencing 2015 and each alternate year thereafter and for the first half in the summer holiday period commencing in 2016 and each alternate year thereafter, the summer holiday vacation period being calculated as commencing on the last day of the school year until 6.00 pm two days prior to the commencement of the new school year.
(g) On C’s birthday if she is not in the father’s care as follows:-
(a)If the birthday falls on a school day, for a period of three hours at times to be agreed and failing agreement from 3.30 pm to 6.30 pm;
(b)If the birthday falls on a non-school day, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;
(h) On D’s birthday if he is not in the father’s care as follows:-
(i)If the birthday falls on a kindergarten day or school day, for a period of three hours at times to be agreed and failing agreement from 3.30 pm to 6.30 pm;
(ii) If the birthday falls on a non-school or kindergarten day, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;
(i) On the father’s birthday when the children are not otherwise in his care as follows:-
(i)If the birthday falls on a weekday, for a period of three hours at times to be agreed and failing agreement from 3.30 pm to 6.30 pm;
(ii)If the birthday falls on a weekend, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;
(j) On the Father's Day weekend from 4.00 pm on the Saturday preceding Father's Day until the commencement of day care/kindergarten/school on the Monday after Father's Day;
(k) For Christmas as follows:-
(i)In 2014 and each alternate year thereafter from 12.00 noon Christmas Eve until 3.00 pm Christmas Day; and
(ii)In 2015 and each alternate year thereafter from 3.00 pm Christmas Day until 6.00 pm Boxing Day;
(l) As may otherwise be agreed between the parties from time to time.
4.That the children live with the mother at all other times.
5.That the father’s time with the children pursuant to paragraphs 3(a) to (f) inclusive resume at the commencement of each new school term as if uninterrupted by the school holiday period.
6.That the father’s time with the children pursuant to paragraph 3 hereof be suspended as follows:
(a) For Christmas as follows:-
(i)In 2014 and each alternate year thereafter from 3.00 pm Christmas Day until 6.00 pm Boxing Day;
(ii)In 2015 and each alternate year thereafter from 12.00 noon Christmas Eve until 3.00 pm Christmas Day;
(b) For one half of the school term holidays at times to be agreed and failing agreement as follows:-
(i)For the first half of the school term holidays in 2015 and each alternate year thereafter from the last day of term until 12.00 noon on the middle Saturday of the term holiday period; and
(ii)For the second half of the school term holidays in 2014 and each alternate year thereafter from 12.00 noon on the middle Saturday of the term holiday period until the commencement of school or 9.00 am on the first day of the new school term;
(c) During the long summer vacation period as follows:-
(i)In the long summer vacation period commencing December 2014 as agreed between the parties and failing agreement as follows:-
A.From 6.00 pm on 2 January 2015 until 6.00 pm on 9 January 2015; and
B.From 6.00 pm on 16 January 2015 until 9.00 am on 26 January 2015;
(ii)In the long summer vacation period commencing December 2015 and each alternate year thereafter, for one half of the long summer vacation period at times to be agreed and failing agreement for the first half in the holidays commencing December 2015 and each alternate year thereafter and for the second half of the school holiday period commencing December 2016 and each alternate year thereafter (the long summer vacation period being defined as commencing on the last day of the school year until 6.00 pm two days prior to the commencement of the new school year;
(d) In the event that C’s birthday falls during the father’s time as follows:-
(i)If it falls on a school day, for a period of three hours as agreed and failing agreement from 3.30 pm until 6.30 pm; and
(ii)If it falls on a non-school day, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;
(e) In the event that D’s birthday falls during the father’s time:-
(i)If it falls on a non-school or kindergarten day for a period of four hours on the birthday at times to be agreed and failing agreement from 9.00 am until 1.00 pm;
(ii)If it falls on a school or kindergarten day for a period of three hours as agreed and failing agreement from 3.30 pm to 6.30 pm;
(f) In the event that the mother’s birthday falls during the father’s period of time at times to be agreed and failing agreement from 9.00 am to 1.00 pm; and
(g) On Mother's Day from 4.00 pm on the Saturday preceding Mother's Day until the commencement of kindergarten/school on the Monday following Mother's Day.
7.For the purposes of changeover, the father shall collect the children from school or after-school care and return them to school or before-school care, but in the event that changeover at school or childcare is not possible the father will collect the children at the commencement of his time from McDonald’s in E Street, Suburb F and the mother shall collect the children at the conclusion of the father’s time from McDonald’s in E Street, Suburb F.
8.That each party notify the other as soon as practicable of any accident or illness requiring either of the children to have medical treatment, and both the father and the mother be permitted to attend any specialist medical appointments and in the event of hospitalisation, the hospital.
9.That the mother and the father keep the other notified of any change of address or telephone numbers within seven days of any such change.
10.That the mother and the father be permitted to communicate by email and SMS text messaging in respect of the following matters:-
(a) The children’s health (including but not limited to emotional and physical health);
(b) Arrangements for the children’s extra-curricular activities; and
(c) Arrangements for the children’s schooling and childcare arrangements.
11.That the mother and the father by themselves, their servants and agents be and are hereby restrained from:-
(a) Denigrating the other or any member of their household to or in the presence of the children; and
(b) Discussing these proceedings or showing the children any documents from these proceedings.
12.That in the event that either party intends to travel within Australia but outside the State of Victoria with the children, they provide to the other parent:-
(a) At least 14 days’ notice of any intended travel, such notice to be given in writing with such notice to include a copy of the itinerary for the children, return tickets and contact details for the children during such travel;
(b) Such time not to interfere with the other parent’s time with the children pursuant to these orders unless otherwise agreed between the parties in writing.
13.That the mother and the father each do all such acts and things as may be required to authorise:-
(a) The children’s child care/kindergarten/schools to communicate with the other parent and to provide to the requesting parent (at that parent’s expense) copies of all school reports, notices, photograph order forms and any other documentation ordinarily provided to parents;
(b) Both parents’ attendance at all extra-curricular and child care/kindergarten/school events ordinarily attended by parents;
(c) The children’s medical practitioners and specialists to communicate with the other parent and enable them to provide to the requesting parent (at that parent’s expense) copies of all reports, notices, correspondence and any other documents ordinarily provided to parents;
(d) The children to each be issued with an Australian passport when requested by the other parent to do so, with the mother to hold the passports other than during those times when the father requires them for the purpose of travel pursuant to any orders of the Court, the cost of any passport application for the children to be shared equally by the parents;
14.That the mother and the father each be permitted to communicate with the children by telephone during periods when the children are in the other parent’s care as follows:-
(a) The children may telephone either parent at any reasonable time;
(b) By telephone each Tuesday and Thursday between 6.00 pm and 6.30 pm.
15.That as soon as practicable the parties attend upon a psychologist as nominated by Ms B, family consultant for the purposes of therapeutic non-reportable counselling regarding the implementation of these orders, and thereafter continue to attend such therapeutic counselling sessions as may be reasonably recommended by the nominated therapist.
16.That the cost of attendance upon the therapist nominated by Ms B shall be shared equally between the parties and in the event that a party elects to see that therapist on an individual basis for additional sessions, the cost of those additional sessions be at the cost of that party.
17.That pursuant to s 117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable by the father to the mother in respect of the children C born … and D born … 2009 for the period 16 September 2013 to the date of these orders (“the period”).
18.That the father’s liability pursuant to the assessment for the period be equal to the amount paid by him to the mother for the period (including the value of any non-agency payments credited for the period), the effect being that there be no arrears of child support payable by the father to the mother and no over-payment created pursuant to the assessment for the period.
19.That all extant applications be otherwise dismissed.
20.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Weber & Lipson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 5453 of 2012
| Mr Weber |
Applicant
And
| Ms Lipson |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to the parenting arrangements for the children C, who was aged five years and eight months at the time of trial, and D who was aged four years and three months at the time of trial. Both children have many advantages in life, not least of which is the fact that they are dearly loved by their parents. Both parents are professionals, have secure employment and are well positioned to provide for the children’s physical needs.
Despite those advantages, the parties have been mired in conflict since their separation. Each parent has raised serious allegations against the other; allegations of family violence and abuse. As a result of those allegations and the conflict surrounding them, the children’s welfare has been compromised.
In addition to the parenting issues, I am also asked to determine a further issue between the parties as to the implementation of the Binding Child Support Agreement executed by them on 16 September 2013.
Originally, the matter was listed for a three day hearing. On the first day of the hearing, notwithstanding the allegations levelled by each of the parties against the other, it appeared that there was much common ground between them as to the future parenting arrangements for the children.
Sadly, both for the parties and for the children, that common ground dissolved late on the first day of the hearing. As a consequence, the dispute as to with whom the children live and the time to be spent by them with each of their parents, together with the child support issue, was argued over the ensuing two days.
THE PARTIES
The applicant is Mr Weber, aged 46 years. He is the father of C and D. The father is engaged in full-time employment as a legal professional.
The father lives in a rented apartment at Suburb S.
The respondent is Ms Lipson, aged 42 years. She is the mother of the children. The mother is engaged in full-time employment with Company Z as a manager. She has a degree and has previously worked as a professional.
The mother lives in rented accommodation in Suburb Y.
BACKGROUND
The parties commenced living together in England in 2002. They married in April 2003 and separated in May 2012.
At the time of separation the father was in Singapore undertaking study for his professional qualifications. Whilst he was absent from the country, the mother attended upon the Magistrates’ Court of Victoria and obtained an interim intervention order due to alleged violent behaviour by the father towards her prior to his departure. That order was obtained by the mother on 21 May 2012. That order prohibited the father from attending the former matrimonial home at Suburb G.
The mother informed the father of the interim intervention order by email dated 26 May 2012. As a consequence of that order, upon the father’s return to Australia from Singapore, he commenced living separately from the family in a serviced apartment.
The father filed his Initiating Application in this Court on 19 June 2012 seeking interim and final parenting orders as well as final orders with respect to financial matters.
The mother filed a response to Initiating Application on 9 July 2012, also seeking final and interim orders with respect to parenting and financial matters.
As a result of the interim parenting applications, orders were made by consent for the parties to attend upon Ms B, family consultant, for the purposes of the preparation of a family report.
Ms B’s first report in relation to the parties’ parenting applications is dated 23 July 2012. On 6 August 2012, following the release of that report, orders were made by consent with respect to interim parenting matters. Those orders included:-
·That until further order the children live with the mother;
·That until further order the children spend time and communicate with the father as follows:-
-Initially for specified daytime periods;
-Commencing 1 December 2012 each alternate weekend from 8.30 am Saturday to 6.30 pm Sunday; and
-Commencing 6 December 2012, each week from 7.30 am Thursday to before day-care/kinder Friday.
The proceedings in relation to both financial and parenting matters were listed for final hearing before me on 16 September 2013. That day I made final orders by consent in relation to financial matters. In addition, I made interim orders by consent with respect to parenting matters. Those interim orders included orders that:-
·The competing parenting applications be adjourned for final hearing before me on 12 March 2014;
·The parties attend upon Dr H, psychiatrist, for assessment;
·The father attend upon Relationships Australia or such other appropriately qualified counsellor for assistance in dealing with any issues arising from the breakdown of the marriage;
·Both parties undertake a “parenting after separation” course;
·The father spend further time with the children on special days, including the children’s birthdays, Father's Day, Christmas and the long summer holiday period; and
·Otherwise the interim arrangements provided in the orders of 6 August 2012 were to continue.
In addition to the proceedings before this Court, the family violence proceedings in the Magistrates’ Court of Victoria have been on-going. Following the interim intervention order made on 21 May 2012, a final intervention order was made on 14 September 2012. That order was consented to by the father without admission.
On 20 August 2013 the mother applied for an extension to that intervention order. The basis for that application was her allegation that the father had breached the existing order on two occasions. I will refer to the breaches of that order later in this judgment.
On 19 December 2013, the father consented to an extension of the intervention order, again without admissions. That intervention order will expire on 20 August 2015.
THE FATHER’S POSITION
The father relied upon:-
·His case outline filed 13 September 2013;
·Exhibit A1, being orders sought by the father dated 13 March 2014;
·Exhibit A5, being further orders sought by the father dated 14 March 2014;
·Exhibit A6, being further orders sought by the father with respect to child support;
·His affidavit filed 14 February 2014;
·His affidavit filed 26 August 2013;
·Affidavit of Ms P filed 27 August 2012;
·Affidavit of Ms B filed 5 September 2013; and
·Affidavit of Dr H filed 11 March 2014.
The father seeks orders in the terms of Exhibits A1, A5 and A6, which include:-
·That the parties have equal shared parental responsibility for the children;
·That the children live with and communicate with the father as follows:-
(a) From the date of these orders until 22 April 2014:
(i)Each week from the conclusion of child-care/kindergarten/school or 3.30 pm (whichever is earlier) Thursday until the commencement of child-care/kindergarten/school or 9.30 am Friday; and
(ii)Each alternate weekend from 8.30 am Saturday until 7.30 pm Sunday;
(b) As and from 22 April 2014 until 14 July 2014 in a two-week alternating cycle as follows:-
(i)In week one from after child-care/kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of child-care/kindergarten/school or 9.30 am Friday; and
(ii)In week two from the conclusion of child-care/kindergarten/school or 3.30 pm Thursday until 7.30 pm Sunday;
(c) As and from 14 July 2014 until 13 April 2015 in a two-week alternating cycle as follows:-
(i)In week one from the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Friday; and
(ii)In week two from the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Monday;
(d) As and from 13 April 2015 in a two-week alternating cycle as follows:-
(i)In week one from the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Friday; and
(ii)In week two from the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Tuesday;
(e) As and from the commencement of Term 2 in 2016 on a week about basis with changeovers to occur at the conclusion of school or 3.30 pm each Friday;
(f) For one half of each of the term school holidays as agreed and failing agreement as specified in paragraph 2(f)(i) of exhibit A1;
(g) For specified times during the long summer vacation period and commencing in the long summer holiday period in 2015 for one half of that holiday period as agreed; and
(h) For specified times on special days;
·That the children live with the mother at all other times;
·That there be specific orders regarding changeovers, notification of the other party in the event of an accident or illness affecting the children.
·That the parties each be restrained by injunction from denigrating the other or discussing these proceedings with the children;
·That any arrears that have accumulated due to the current administrative assessment of child support as and from the commencement of the Binding Child Support Agreement on 16 September, 2013 be discharged.
THE MOTHER’S POSITION
The mother was represented in the proceedings until 3 March 2014 (being nine days prior to the commencement of the hearing), when her former solicitor filed a Notice of Ceasing to Act. As a consequence, the mother was unrepresented at the hearing.
The mother relied upon the following material:-
·Her case outline dated 10 September 2013;
·Exhibit R1 being Orders Sought by the respondent at commencement of the hearing on 12 March 2014 (headed “Response to Father’s Amended Application dated 13 February 2014”);
·Exhibit R2 being a minute of mother’s proposed orders dated 14 March 2014;
·Her Affidavit filed 7 March 2014; and
·Her Affidavit filed 5 September 2013.
HOW THE HEARING PROCEEDED
At the commencement of the hearing on 12 March 2014 the mother confirmed that the document she had forwarded by email to my Associate prior to the hearing entitled “Response to Father’s Amended Application dated 13 February 2014” was relied upon by her as her Case Outline. She confirmed that that document set out the orders she sought on a final basis. That document was marked as Exhibit R1.
The orders sought by the mother, as set out in Exhibit R1 provided that the children live with the father for increasing periods of time, culminating in a week about routine from 12 noon Sunday to 12 noon the following Sunday, commencing on 10 April 2016. That proposal was put subject to three conditions being:-
(a)The provision of a “favourable report” of the children by Ms B or another appropriately qualified practitioner prior to the implementation of increased periods of time;
(b)That the father have no further criminal charges for breaches or reported breaches of intervention orders nor any other criminal charges; and
(c)That the father complete a men’s behavioural change course and provide written confirmation of completion prior to 7 October 2014.
During discussions on the first day of the hearing I informed the mother that it was unlikely that I would make orders as sought by her in sub-paragraph (a) above, the effect of which was to relinquish to Ms B decision-making power as to when the children’s time with their father should increase. I explained to the parties that it was my role as judge to determine if and when the children’s time with the father should increase.
During the course of those discussions the mother confirmed that she would consent to orders for the children to live with the father as set out in paragraph 2 of Exhibit R1 provided that there were appropriate safeguards in place for the children.
At that stage, the parties were largely in agreement as to the time the children were to spend with each of their parents. The issues between them centred upon:-
(a)whether the children should spend block periods of time with the father (as sought by the mother) or whether such time should be spent in shorter periods over a two-week cycle (as sought by the father); and
(b)what safeguards should be put in place to allay the mother’s concerns with respect to the children’s safety when with the father.
Given the narrow range of matters in dispute, the proceedings were stood down to enable the parties to have discussions to see if they could resolve those issues.
At approximately 3.00 pm on the first day of the hearing I was informed by counsel for the father that the parenting orders were largely agreed and that there were three matters in dispute, namely:-
(i)Whether the children should spend time with the father in one block or whether that time should be spread over a two-week period;
(ii)Whether a counsellor should be engaged to provide therapeutic support to the parties to assist them in the implementation of the orders; and
(iii)The implementation of the Binding Child Support Agreement and the discharge of arrears accrued as a result of the operation of the administrative assessment of child support.
It was submitted by counsel for the father that in light of the matters in dispute, the matter could proceed on a submission basis. I indicated that I would be assisted in the determination of how the children’s time should be implemented by hearing from the family consultant, Ms B in relation to that issue.
That afternoon it was arranged for Ms B to give evidence by telephone. The purpose of calling her to give evidence was to obtain her insights as to how the father’s time should be implemented and what therapeutic or other supports should be provided to the parties to facilitate the children’s time with the father. At that stage, the parties were in agreement that over a period of time, the father’s time with the children should increase to the point where the parties were sharing the care of the children on a “week about” basis.
Ms B has prepared two reports in this matter, the first report dated 23 July 2012 following her interviews and observations with the parties which occurred on 18 July 2012, and the second report dated 23 August 2013 following her interviews and observations of the parties on 8 August 2013. Both reports are annexed to Ms B’s affidavit filed 5 September 2013.
Ms B was cross-examined in relation to her observations and recommendations. I found her oral evidence to be thoughtful, and considered and of great assistance to me in determining the issue of what arrangements are likely to be in the children’s best interests.
When questioned as to whether the children’s time with the father should be in one block or shorter periods spanning a two-week cycle, Ms B was clear in her recommendation that the children would benefit were the current routine of spending time with the father across a two week period continued, with Thursday overnight in one week and extended periods in the alternate week. Ms B stated a clear preference for the proposals put by the father with respect to how the time should be implemented. During cross-examination, Ms B confirmed that the children would have difficulty were they to move from the existing routine to a routine where there were long periods where they had no time with the father and the mother. I accept that evidence.
As to the issue of whether there should be therapeutic support or some other form of supervision for the parties to assist with the implementation of the children spending increased time with the father, again Ms B was clear and unequivocal in her recommendations. She stated during cross-examination that it was her view that the parties would benefit from therapeutic support but that that support should not be reportable to the Court. It was her view that the parties would benefit if the spectre of court proceedings could be put behind them. Again, I accept that evidence.
Following the evidence of Ms B the matter was stood down to enable the parties to consider that evidence and to pursue their discussions.
The hearing resumed at approximately 10.00 am on 13 March 2014. At the resumption of the hearing, the mother informed the Court that her previous position, as set out in Exhibit R1, was withdrawn.
I then asked the mother what orders she sought in relation to parenting arrangements. The mother stated that she sought a continuation of the status quo, being that the children spend three nights per fortnight with the father on alternate Saturday to Sunday and each Thursday overnight.
In light of the mother’s changed position, I requested that she prepare for the Court a detailed minute of the orders she sought.
Notwithstanding my repeated requests for the mother to prepare a detailed minute of her proposed orders (those requests having been made on the morning of 13 March 2014, prior to the luncheon adjournment and again at the end of that day and also on 14 March 2014 at the mid-morning break and again prior to the luncheon adjournment) the mother did not provide a minute of her proposed orders until shortly prior to the commencement of closing submissions on 14 March 2014. Those proposals are set out in Exhibit R2. The orders sought by the mother provide that the children live with her and spend time with the father as follows:-
·Each week from Thursday 7.00 am to before school/kindergarten Friday;
·Each alternate weekend from 8.30 am Saturday to 6.30 pm Sunday;
·By telephone each Monday and Wednesday at 6.00 pm; and
·At specified times on special days.
The hearing of the issues resumed mid-morning on 13 March 2014. As the mother was unrepresented, I provided her with copies of ss 60B, 60CA, 60CB, 60CC, 60DC, and 60CE of the Act.
Prior to counsel for the father opening his case, I informed the parties that in accordance with the provisions of the Act I must have regard to the best interests of the children as the paramount consideration. Further, I informed the parties that in determining what is in the children’s best interests, I would have regard to the considerations set out in s 60CC of the Act, and I particularly drew the parties’ attention to those provisions. I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses.
LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) sets out the principles underlying those objects. They 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).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return those considerations in detail below.
There is a presumption that it is in the children’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the children spend with each parent. For the reasons set out hereunder, I am satisfied that the presumption in favour of the parents having equal shared parental responsibility applies in this case.
If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether the children spending equal time with each parent would be in the children’s best interests (s 65DAA (1)(a)), and whether it is reasonably practicable (s 65DAA (1)(b)), and then consider an order for equal time (s 65DAA (1)(c)).
If the Court does not make an order for equal time, it must consider whether the children spending substantial and significant time with each parent would be in the children’s best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d)), and then consider an order for substantial and significant time (s 65DAA (2)(e)). “Substantial and significant time” is defined in s 65DAA(3), and s 65DAA(5) deals with “reasonable practicability,” providing that 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.
The relevant standard of proof in relation to the determination of the issues in this case is the balance of probabilities. Without limiting the matters that the Court may take into account, s 140(2) of the Evidence Act1995 (Cth) provides that in applying that standard of proof, the Court must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged.
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of the witnesses.
I have had the benefit of observing the parties giving their evidence and being cross-examined and also in observing them in the court room, including their demeanour and behaviour. My observations of them have been of great assistance to me in formulating appropriate parenting orders. The importance of those observations was noted by Kirby J in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at page 313 where his Honour said:-
By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing…
THE ISSUES
The parenting issues in this case, as identified in the parties’ affidavits, the family report and during the course of the hearing may be summarised as follows:-
·Allocation of parental responsibility;
·Whether the children are at risk of harm in the care of the parties;
·With whom the children live;
·With whom the children spend time;
·Whether the father has perpetrated acts of family violence;
·If so, what time the children spend with their father;
·Whether the parties are able to facilitate and promote the children’s relationship with the other parent; and
·The capacity of each of the parties to ensure the children’s emotional and physical well-being.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).
(a)the benefit to the children of having a meaningful relationship with both of the children’s parents;
The Act does not define “meaningful relationship”, nor does it prescribe criteria upon which the Court is to rely in determining how a child’s parents are to have such involvement in a child’s life.
In the decision of Mazorski v Albright (2007) 37 FamLR 518, Brown J considered the question of what is a meaningful relationship and concluded at paragraph 26 that a meaningful involvement is “one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one”.
In McCall & Clark (2009) FLC 93-405, the Full Court cited Brown J’s judgment in Mazorski & Albright with approval. Further, the Full Court concluded at paragraph 119 that the preferred interpretation of s 60CC(2)(a) is the “prospective approach”, that is that the Court “should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interest, orders can be framed to ensure the particular child has a meaningful relationship with both parents”.
In her first report dated 23 July 2012 (“the first report”), Ms B observed at paragraph 26 as follows:-
The quality of the relationships between [C] and [D] and each of their parents was excellent. It was evident that they felt safe and secure in the company of their mother and father and the intimacy demonstrated reflected a history of extensive involvement by each of the parents in meeting their needs and a lifetime of shared positive experiences.
Those positive observations were echoed by Ms B almost a year later in her second report dated 23 August 2013 (“the second report”) wherein she noted at paragraph 15 as follows:-
The overall quality of the relationship between the children and each of their parents continues to be very positive, reflecting the strong commitment each of the parents has to their well-being.
The evidence of Ms B with respect to the quality of the relationship enjoyed by the children with both parents was not challenged. I am satisfied having regard to that evidence that the children are likely to benefit from continuing to have a meaningful relationship with both of their parents.
(b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
In cases where there is inconsistency between the primary considerations under s 60CC(2), the Court is required pursuant to s 60CC(2A) to give greater weight to the considerations set out in sub-paragraph 2(b) than to those in sub-paragraph 2(a).
The cornerstone of the mother’s case was her allegations that she had been subjected to on-going family violence at the hands of the father. The allegations of the mother include that the father had threatened her, including threats to kill her, and that the father has breached the intervention order on two occasions. Those breaches including what was described during the proceedings as “the wedding quilt incident”. Further, the mother alleges that the children have been exposed to the father’s threatening behaviour and have made concerning comments at child-care, which have included statements such as “mummy is a bad person and daddy is going to kill her”.
The father emphatically denies the mother’s allegations with respect to family violence. Whilst he concedes that the parties did experience difficulties in the latter stages of their relationship and that tensions were high, he denies that he made threats as alleged by the mother. During cross-examination, the father conceded that his behaviour, when angry, may have been intimidating to the mother.
The mother alleges that not only did she suffer threats from the father prior to separation, but that the family violence has continued following the parties’ separation. In particular she relies upon “the wedding quilt incident” in support of that allegation.
The “wedding quilt incident”
The mother alleges that on 3 June 2013, the father, in breach of an existing intervention order, attended at her residence in the early hours of the morning and placed a quilt, gifted to the parties upon their wedding (“the wedding quilt”) rolled up in front of her car, which was parked in front of her residence. The mother alleges that she discovered the wedding quilt in front of the car when leaving the home at approximately 6.30 am for her morning run.
In her trial affidavit filed 5 September 2013 the mother deposes at paragraph 173 that it was her belief that the father was the last person to have been in possession of the wedding quilt and that it was her belief that the father had placed the quilt in front of her car folded in the shape of a body. The mother perceived that alleged conduct to be a threat by the father towards her. As a result of that incident the father was charged with breaching the intervention order.
The father denies that he was the perpetrator of the wedding quilt incident. The father has been consistent in his denials as to any involvement in that incident, those denials having been made in his affidavit material, to Ms B during the interviews conducted by her in 2013, and in his oral evidence.
During her cross-examination of the father, the mother specifically put to the father that his denial of involvement in the incident as contained at paragraph 76 of his affidavit filed 15 July 2013 was a lie. The father was adamant that he had not lied.
During his oral evidence the father stated that he did not have access to the wedding quilt and therefore could not have been responsible for the incident. In his oral evidence the father stated that separation occurred whilst he was in Singapore undertaking study. The only personal items in his possession at the time of separation were in his luggage taken with him on that trip to Singapore.
The father’s evidence was that upon his return to Melbourne he commenced living in a serviced apartment and did not return to the home until after it had been sold at auction. The father stated that following the sale of the home, he had limited access only for the collection of his personal belongings which were left at the home by the mother. The bedding left at the home was collected by the Salvation Army. He stated that there was no bedding or quilts in the belongings taken by him following the sale of the home.
The mother’s evidence in relation to the wedding quilt incident was tested during cross-examination. During cross-examination the mother’s evidence was that:-
·On the morning of 3 June 2013 the children’s nanny, Ms J attended the home to enable the mother to go for a run.
·The mother left the home whilst still dark to go for her run and upon leaving the home noticed the wedding quilt in front of her car.
·She confirmed that in her mind the only person who could have placed the quilt there was the father and that the placement of the wedding quilt near her car was perceived by her to be a threat directed towards her.
·She confirmed that upon observing the wedding quilt she returned to the house and retrieved her telephone in order to take a photo of the wedding quilt.
·She confirmed that after taking photographs she continued on her run. She confirmed that she took her usual route that morning. Upon her return she disposed of the quilt by placing it in the bin.
·Notwithstanding her apparent distress and fear arising from her observation of the wedding quilt and the fact that there is an existing intervention order against the father, the mother did not report the incident to the police until later that afternoon between 5.00 pm and 6.00 pm.
·Prior to the mother’s attendance upon the police to report the matter, she made arrangements for herself and the children to stay with family friends in Suburb I that evening.
The mother’s oral evidence as to the timing of those matters was inconsistent with her evidence as contained in her affidavit filed 24 June 2013. At paragraph 11 of that affidavit the mother deposed:-
I reported the matter to the police later that day as a result of there being in place an IVO. As a consequence of my discussions with the police the children and I moved to [Suburb I] for a week.
There were many concerning features of the mother’s evidence in relation to that incident. As identified above, there were inconsistencies between her oral evidence and that of her affidavit filed 24 June 2013. Further, during her oral evidence the mother confirmed that the nanny, Ms J had not observed the wedding quilt near the car upon her arrival at the home on the morning of 3 June 2013.
The mother stated that she was distressed at finding the wedding quilt near her car. Nonetheless she continued to take her morning run in the dark, following her usual route. In my view such conduct is not consistent with that of a person who has been threatened and is fearful for her safety.
Notwithstanding her apparent distress and fear and the existence of a current intervention order, the mother waited approximately 11 hours before reporting the matter to the police. Further, the mother has never provided evidence to the court from Ms J as to the events of that day.
The mother’s evidence was that she disposed of the quilt that morning. Accordingly, the police never had the opportunity to sight the quilt or undertake any forensic examination of the quilt as part of their investigations.
Interim parenting matters were before the Court on 24 June 2013. The mother swore an affidavit that day in relation to those parenting matters, which related to a contravention application issued on behalf of the father. One might have anticipated that the mother would have sought some reduction in the father’s time or other variations of the existing orders given the mother’s allegations as to the father’s conduct. No such application was made at that time or subsequent.
It is said by the father that the wedding quilt incident is a “set-up” by the mother and an attempt by her to bolster her case that the father should have limited time with the children. Whilst I cannot make any finding in relation to that allegation, as outlined above there are many troubling aspects with respect to the mother’s evidence regarding the incident. Many of her actions are inconsistent with the behaviour of a woman who is genuinely fearful for her own safety and for the safety and well-being of her children.
The father’s evidence in relation to these matters was consistent. I found him to be open and truthful and his explanation as to why he did not have possession of the wedding quilt at the time of the incident to be plausible.
Having had the benefit of observing both parties giving evidence with respect to this incident, on balance I prefer the evidence of the father. I accept the father’s evidence that he did not attend the mother’s property and place the wedding quilt in front of the mother’s car.
The father’s text to the mother
In addition to the wedding quilt incident, the father was charged with a further breach of the intervention order as a result of a text message he sent to the mother on 6 June 2013. The father admitted sending the text message to the mother. A copy of the text message is annexure CML 18 of the mother’s trial affidavit filed 5 September 2013. That message says:-
[C] just said to me twice that your mother is telling her and [D] say the words ‘kill’, ‘jail’, and ‘police’. In addition she is telling her and [D] to ask me repetitive questions about my father, grandfather and grandmother. In the interests of your children, please ask your mother to stop damaging them.
In the period preceding the father sending that text message to the mother, the children were observed by their day-care centre to have made a number of concerning statements, such as “Mummy is a bad person and Daddy is going to kill her”.
The father denies having influenced the children in any way to make such statements. At the time the children were making such statements the maternal grandmother was visiting Melbourne from interstate and spending time with the children. The father questioned whether the children were being influenced by the maternal grandmother to make such statements. It was in that context that the father sent the text message to the mother.
The father alleges that the mother has used the intervention order proceedings as a means of curtailing his time with the children. He relies upon the mother’s complaint arising from the text message as evidence of such conduct.
Proceedings relating to breaches of intervention order
The breaches relating to the wedding quilt incident and the text message referred to above were dealt with in the Magistrates’ Court on 19 December 2013. The father made admissions in relation to the two charges and explained his position in relation to those admissions at paragraph 18 of his affidavit filed 14 February 2014 wherein he deposes:-
My barrister submitted me as a candidate for the Diversion Program given that a criminal conviction would prevent me from continuing to engage in [my profession] and earn an income in order to meet my child support obligations as well as my own living expenses. I was accepted into the Diversion Program by the Magistrate and a Diversion Order was made providing that I donate $500 to the Magistrates’ Court fund, issue an apology letter to [the mother] and attend a Men’s Behaviour Change Course … [A]s part of the Diversion package I also agreed to an extension of the intervention order without admission pursuant to [the mother’s] extension application.
Much of the mother’s case focussed on the father’s admissions to the two breaches.
The father was candid as to his reasons for his admissions to the breaches of the intervention order. The father’s evidence was and I accept that he made those admissions to ensure that he was eligible to enter the Diversion Program in order to avoid a conviction and the potential risk to his ability to continue to work in his profession.
Notwithstanding his admissions, the father was steadfast in his evidence that he was not the perpetrator of the wedding quilt incident. As noted above, having considered all of the evidence in relation to that incident, I am satisfied on the balance of probabilities that the father did not place the wedding quilt near the mother’s car on that occasion.
Further, whilst the father’s text message is a breach of the intervention order, I am satisfied that that conduct was not in any way intended to threaten or intimidate the mother. Rather, I am satisfied that the purpose of that text message was to inform the mother of the worrying statements made to him by the children, to indicate the father’s concern in relation to those statements and to inform the mother as to his belief that the source of those comments was in fact the maternal grandmother. In my view, it is most unfortunate that the mother saw the father’s message as an opportunity to make a further complaint to the relevant authorities regarding the father’s conduct.
In all of the circumstances, I am satisfied that the breach of the intervention order by the father in sending that text message is not a matter which supports the mother’s position that the children’s need for protection from exposure to harm, including family violence, is such that their time with the father should be limited.
Assessment by Dr H
As a result of the mother’s allegations regarding the father’s conduct, including the wedding quilt incident, in her second report Ms B recommended that the parties both be psychiatrically assessed. Dr H, psychiatrist, was engaged as a single expert to undertake those assessments.
In his report dated 4 February 2014 which is annexed to his affidavit filed 11 March 2014, Dr H notes that neither the mother nor the father showed evidence of an underlying mood or anxiety disorder. Further, neither exhibited any evidence that they are currently or in the past have suffered from any acute psychiatric disorder.
At page 22 of his report Dr H noted that it was likely that the father was “more intimidating and controlling than he recognises … and lacks insight into the impact of his behaviour on [the mother]”. Significantly, the father conceded during cross-examination that his behaviour during the marriage at times may have been perceived by the mother to be intimidating. I am satisfied that that concession indicates that the father, having reflected upon his conduct, has both insight and self-awareness as to the impact of his past behaviour. With ongoing counselling support, as recommended by Ms B, I am satisfied that the father will continue to develop his awareness as to the potential impact of his behaviour on others and to manage and regulate his behaviour accordingly.
Dr H made no observations which would suggest that the father has any psychological or psychiatric disorder.
Family violence is a scourge on our society. The Act has been specifically amended to ensure that the protection of children from exposure to family violence is elevated above other considerations.
The mother relies upon the father’s admissions of the breaches of the intervention order as a basis for the need to limit the father’s time with the children. She alleges that the children have been exposed to family violence and that there is an ongoing need to protect the children from the harm of being exposed to family violence.
I am satisfied that the father’s admissions to the breaches given in order that he have access to the Diversion Program are not a basis for limiting his time with the children. The observations of Ms B as to the children’s relationships with both parents, as detailed above do not support a finding that these children have been exposed to family violence; rather, those observations indicate that the children have had the benefit of loving parents and a safe and secure home environment.
Many of the matters relied upon by the mother as evidence of family violence arise from the conflict between the parties in the period shortly prior to their separation. The parties have now each completed parenting after separation courses. The father has commenced counselling with the Salvation Army, undertaking a “Positive Lifestyle Program” which includes units on self-awareness and anger. Further, he is undertaking a “Men’s Behaviour Change Program” as part of the Diversion Program.
Having regard to my findings in relation to the mother’s allegations as well as the father’s evidence as to the steps he has taken to address the mother’s concerns, I am satisfied that the children are not at risk of exposure to family violence.
I now turn to the additional considerations in s 60CC(3) of the Act.
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views;
Both children are too young for their views to be determinative. It is their attachment to their parents, as observed by Ms B, which is of greater importance.
(b)the nature of the relationship of the children with:
(i) each of the children’s parents; and
(ii) other persons (including any grandparent or other relative of the children);
The strength of the relationship that each child has with both of their parents is a striking feature of this case. The children were first observed by Ms B in the care of their parents in July 2012, approximately two months following the parties’ separation. Following separation, there was a period of approximately four weeks when the children did not see the father, and when they did commence spending time with him, it was in a supervised setting.
The observations of the supervisor, Ms P as contained in her affidavit filed 27 August, 2012 (which are unchallenged) reflect the positive and close relationship shared between the children and the father during the commencement of supervised time in June, 2012 shortly following the parties separation. In her report annexed to that affidavit she notes that on 17 June, 2012 “the children were relaxed and happy to see him giving him drawings and flowers from their garden”. The observations of subsequent contact periods echo those observations. Those observations are even more striking given that they occurred in the period shortly following the alleged family violence to which the children were allegedly exposed and which was the basis for the need for supervision.
At paragraph 19 of her first report, Ms B notes that during their interviews with her in July 2012 it was conceded by both parties that:-
There is no dispute as to the quality of the relationship between the children and each of their parents. That is, it is agreed that both children are happy in each parent’s care and it is in their interests for the relationships between them and each parent to be supported and fostered by the other parent.
That common ground between the parties was supported by Ms B’s own observations. At paragraph 26 of her first report she noted:-
The quality of the relationships between [C] and [D] and each of their parents was excellent. It was evident that they felt safe and secure in the company of their mother and father and the intimacy demonstrated reflected a history of extensive involvement by each of the parents in meeting their needs and a lifetime of shared positive experiences.
At paragraph 39 of the first report Ms B reported on her observations of the father with the children in the most positive of terms. She noted that the father’s interactions with the children were:-
...of a passionate father relating in a happy, loving and supportive manner, focussing at all times on their needs and ensuring their play was both enjoyable and stimulating. It was evident from his behaviour with them and their responses that he had been a ‘hands on’ parent with an intimate knowledge of their needs and predilections. Nothing in the interactions observed by this consultant led to the conclusion that he was more or less predisposed than any other parent to becoming frustrated or angry with them, nor did their behaviour towards him indicate any sense on their part that they were anything other than safe and secure in [the father’s] care.
Ms B’s observations of the children with the mother were equally positive. At paragraph 47 of the first report Ms B noted that:-
[The mother’s] relationship with them was that of an insightful, loving parent who was at pains to ensure their emotional well-being by both her loving interactions with them and her desire to keep their lives as routine and normal as possible.
In her second report Ms B again had the opportunity to observe each of the children with their parents. Those observations occurred in August 2013. Again, Ms B observed the children’s relationship with the parents to be “very positive, reflecting the strong commitment each of the parents have to their well-being.”
At paragraph 19 of the second report Ms B observed that:-
[C] and [D] are two essentially normal, healthy children who, however, are considerably disturbed when their parents’ conflict spills over directly onto them. It is evident that their primary parenting figure and greatest source of security is their mother and that their father is also very important to them. It remains the case that these children’s needs would best be met by having safe and substantial time with each of their parents.
It is significant that from the commencement of these proceedings the parties have each regarded the children as having strong and secure relationships with both of their parents. Neither party has sought to criticise or challenge the quality of the relationship that exists between the children and the other parent as part of their case.
Further it is significant that at the commencement of the hearing on 13 March 2014 it was the mother’s position that the children’s time with the father should gradually increase from significant and substantial time to the position where, by 2016, when C will be aged seven and a half and D will be aged six, the children will have equal time with each parent, the father’s time then increasing to a “week about” arrangement (albeit that the mother required the safeguards to which I have referred above to be implemented).
During her oral evidence I questioned the mother as to what she perceived to be the benefits or advantages to the children of her original proposal as set out in Exhibit R1. In response to that question the mother identified the following benefits of that proposal for the children:-
·A reduction in changeovers which would reduce stress on the children;
·That arrangement would provide a consistent routine for the children;
Reduction of the conflict between the parents, and therefore a removal of the potential risk of such conflict “spilling” onto the children. At the time she presented it, the mother perceived that proposal (with her proposed safeguards) to be in the children’s best interests.
I am satisfied that the mother’s original proposal is evidence of her confidence in the strength of the relationship between the children and the father. Further, I am satisfied that she would not have made that proposal had she any concerns as to the quality of the relationship the children share with the father or his ability to appropriately care for them.
Ms B noted at paragraph 17 of the second report that:-
[C] is a bright child and has no problem understanding machinations of the time she spends with each of her parents. She spoke very positively and evenly about each of her parents, insisting that her time with each of them was always happy and that there was nothing bad or frightening in either environment.
Further, at paragraph 18 of her second report Ms B noted:-
Both children attend child-care for more than 40 hours per week and in addition spend some time with a nanny at their mother’s home. [C] and [D] are reported by staff at the child-care centre to be happy, normal children.
Ms B’s reports are thorough and detailed. Her evidence as to her observations of the children, their relationships with each of their parents and their presentations during her observations of them with each of their parents was not challenged.
Accordingly, I am satisfied that the children have benefitted from having two actively involved parents which has resulted in the children having secure and stable attachments with both the mother and the father.
(c)the extent to which each of the child’s parent 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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It was the father’s case that the mother, although stating that she was keen to foster his relationship with the children, by her complaints with respect to the breaches of the intervention order as well as her conduct in other areas has, in effect, sought to undermine the father’s relationship with the children. In support of that position the father alleged that the mother did not consult him in relation to the selection of the school C was to attend in 2014. Further, the father alleged that he was advised by the school selected by the mother, being K Primary School, that he was not to attend activities at the school, notwithstanding the interim orders made by consent in August 2012 which provided that the parties have equal shared parental responsibility and that the parties each be permitted to attend extra-curricular activities and events to which parents are ordinarily invited to attend.
The mother informed the father by email dated 30 September 2013 that “[C] will be attending her locally zoned primary school which will now be [K] Primary School”.[1]
[1] Mother’s affidavit filed 7 March 2014 Annexure CML- 8.
The mother cross-examined the father in relation to his communications with C’s primary school. It was the father’s evidence that the school had contacted him to inform him that he could not attend the school. The father alleged that the copies of the court orders provided to the school by the mother were heavily redacted. The effect of the redactions to the orders was that the school was left with the impression that the father was prohibited from attending the school. As a consequence, the father caused his solicitor to write a letter to the school, informing the school of the current orders and providing the school with a copy of the same.
The father in his oral evidence confirmed that he would have liked the opportunity to discuss school selection with the mother prior to the mother’s decision to enrol C at K Primary School.
I am satisfied that the father has sought to participate in decisions around selection of schools for C. Further, having regard to the exchange of emails between the parties, and having heard the parties’ evidence in relation to this matter, I am satisfied that the mother selected C’s school without reference to the father. That C was to attend K Primary School was presented to the father as a fait acompli.
Throughout the proceedings, both in affidavits filed on her behalf, and in her discussions with Ms B, the mother has been at pains to emphasise that she wishes to foster the children’s relationship with the father. However, her desire to foster that relationship has been overshadowed by her stated concerns for the children’s safety when in the father’s care.
The mother relies upon statements made by the children when at child-care as evidence of the children being exposed to inappropriate comments when in the care of their father. In particular, she relies upon documents subpoenaed from the child-care centre, L Centre, which are annexed to her affidavit filed 5 September 2013 at annexure CML-17. That annexure is the incident reports maintained by L Centre for the children for the period 1 January 2013 to 24 July 2013. In particular, the mother refers to and relies upon statements made by C, including that “Mummy is a bad person and daddy is going to kill her”.
The father has consistently maintained that he is not the source of such statements made by the children. As noted earlier in this judgment, the father raised with the mother his concern that in fact the source of the statements was the maternal grandmother, who had been visiting the mother around the time the children were making those statements.
As a result of the father’s concerns with respect to the statements made by the children, he caused a Notice of Risk of Child Abuse to be filed on 14 June 2013. He also sought orders for the children to be urgently assessed by Ms B and for the appointment of an Independent Children’s Lawyer. The mother opposed those applications. Indeed, in her affidavit filed 24 June 2013, being the hearing date for the father’s applications, the mother deposes at paragraph 3 “I believe that there is no urgency in this matter which requires the Court to hear and determine the husband’s applications before the final hearing.” That affidavit was sworn, notwithstanding:-
·The mother’s stated concerns regarding statements made by the children which she alleges emanate from the father; and
·The wedding quilt incident occurred approximately three weeks prior to that hearing.
The evidence of the mother as set out in that affidavit is entirely inconsistent with her stated fears and concerns as to the psychological harm the children may be exposed to when in the father’s care. Accordingly, and on the basis of that evidence I am satisfied that there is substance to the father’s submission that the mother’s stated desire to foster the children’s relationship with the father is not a genuinely held desire.
Much of the mother’s case has focussed on the historical conflict between the parents. In so focussing on those matters, the mother has overlooked the importance of the children’s relationship with the father, their right to know and have both parents meaningfully involved in their lives.
The orders I will make will ensure the children’s opportunity to spend significant and substantial time with each parent is secure, that the parties share in their obligation to maintain the children and the duties and responsibilities of parenthood.
(d)the likely effect of any changes in the children’s circumstances, including the likely effect on the children 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;
Ms B observed in her second report that currently the children’s primary parenting figure is the mother. Nonetheless she observed that the children have a strong relationship with the father and that he is very important to them. At paragraph 19 of her second report she notes that “[i]t remains the case that these children’s needs would best be met by having safe and substantial time with each of their parents”.
At the commencement of his evidence the father was asked the basis upon which he formulated his proposals. The father’s evidence was that he has sought advice from his lawyers, that he had reviewed family law commentaries and case law and further, that he had discussed his proposals with Ms B during his interview with her. He stated that it was as a result of those processes that he formulated his proposals.
As at the commencement of the hearing on 12 March 2014, the parties were largely in agreement as to when the children’s time with the father should increase. That this was so is reflected in the comparison between exhibits A1, being the father’s orders sought and exhibit R1, being the orders sought by the mother. A comparison of those documents confirms that it was agreed that:-
·By 23 April 2014 the father should be spending four nights per fortnight with the children;
·By October 2014 the children should be spending five nights per fortnight with the father;
·By late-April 2015 the children should be spending six nights per fortnight with the father; and
·By the commencement of school term 2, 2016 the children should be spending time with the father on a week about basis.
As identified in the competing proposals, there were differences between the parties as to how the father’s time with the children was to be structured. As noted earlier, the mother resiled from her position on the second day of the hearing and thereafter maintained a position that the father’s time should be limited to three nights per fortnight.
Ms B gave evidence and was cross-examined on both the first and last day of the proceedings with respect to the parties’ competing proposals.
One of the matters raised by the mother as a basis for withdrawing her proposals as set out in Exhibit R1 was the statement made by Ms B during her evidence on the first day of the hearing that she was surprised at the positions adopted by the parties that day. During her evidence on the third day of the hearing Ms B was asked to clarify why she had expressed surprise as to the parties’ then proposals on the first day of the hearing. Ms B responded that the source of her surprise was the fact that the parties had been able to demonstrate more compromise than she had otherwise thought possible in light of the allegations made by the mother with respect to her concerns for the children’s safety.
On the third day of the hearing, I asked Ms B as to whether she had any concerns for the children arising from the father’s proposals. Ms B confirmed that provided the father continue with counselling she had no concerns with respect to the father’s proposal.
When asked to comment on the mother’s revised proposals contained in Exhibit R 2, Ms B observed those proposals to be “a retrograde step”. She stated that whilst she was surprised at the apparent compromise between the parties on the first day of the hearing, she was even more surprised to hear of the mother’s withdrawal from that position. Ms B confirmed that it was her view that the mother’s original position acknowledged the importance of the children’s relationship with each parent and that such a proposal was likely to promote their best interests.
Ms B was also asked whether there was anything in her observations of the children which would indicate any risks that the father may pose to them. Ms B indicated that the only concern she had was with respect to what the children had been saying at child-care, being the threats against the mother. Ms B confirmed that if such comments had not occurred over the last six or seven months then that was a good sign. She also confirmed that in her observation the children adore both their father and their mother.
I found Ms B to be a thoughtful and compelling witness. She was considered in her response to the questions put to her. I accept her evidence.
As identified above Ms B was also cross-examined as to how the father’s time with the children should be structured. Again, her evidence as to the benefits to the children having time with each of the parties on a weekly basis rather than having long gaps in their time with the mother and the father was compelling. I accept that evidence. Accordingly, I will make orders which will provide for an increase in the father’s time culminating in a week about regime on the basis that the children spend time with each of their parents in a two-week cycle, albeit that the timing for the implementation of increased time will be a little slower than sought by the father.
(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;
The mother and the father live in neighbouring suburbs in close proximity to each other as well as in close proximity to C’s school and D’s child-care centre. Accordingly, there are no practical impediments to the children spending time and communicating with each of the parties in accordance with the orders I will make.
(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:
As detailed above, the children enjoy secure and loving relationships with the mother and the father. Each party has demonstrated a strong capacity to provide for all of the children’s needs, including their emotional and intellectual needs. That this is so is evident from their presentation to and the observations of Ms B as noted above.
In her first report, Ms B made a series of recommendations for the father to obtain counselling support to address issues arising from the parties’ separation. The father did not avail himself of such counselling. Accordingly further recommendations were made by Ms B in her second report. Those recommendations included that the parties be psychiatrically assessed and that the father attend counselling to assist him in dealing with on-going issues arising from the breakdown of the marriage. Further she recommended that the parties complete a “Parenting after Separation” program. Those recommendations had not been adopted by the time the matter came on for hearing before me on 16 September 2013. That day I made orders requiring the parties’ engagement with counselling as recommended by Ms B.
Happily, from the children’s perspective, the parties have complied with those orders. Each has completed a “Parenting after Separation” course. Further, as noted earlier in this judgment, the father has engaged in counselling. The father confirmed in his evidence that he will be completing a “men’s behaviour change” program. I will make orders requiring that that course is completed by the father. In doing so, it is my view that the father’s capacity to meet all of the children’s emotional needs is likely to be enhanced by the completion of that course as well as his engagement with on-going individual counselling.
(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;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
So far as these matters are relevant, they have been dealt with in other parts of this Judgment.
(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;
It is always desirable to make orders that are the least likely to lead to further proceedings in relation to a child.
C and D have been the focus of litigation since shortly following the parties’ separation. Ms B confirmed in her oral evidence that from her perspective the children would benefit from the end of all litigation. To that end, she recommended that the parties engage with therapeutic counselling to support them in the implementation of increased time between the father and the children. However, she was clear in her recommendation that that supportive counselling should not be reportable.
The mother throughout the proceedings maintained her stated concern that the children’s safety may be at risk in the father’s care. I am satisfied that the concerns raised by the mother are not supported by the evidence. I am satisfied that with the support of a therapeutic counsellor to assist the parties in the implementation of my orders in conjunction with the intervention order which will continue until 2015 that the mother’s concerns are adequately addressed. Those safeguards will hopefully reduce the possibility of the parties’ return to court in relation to parenting issues.
CONCLUSION
As noted earlier, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence and may be rebutted if the Court finds that it would not be in the best interests of the child to apply.
Balancing all of the evidence in this case, I am satisfied that the presumption is not rebutted. I am not satisfied that the evidence supports a finding that the father has engaged in family violence or abuse.
In all of the circumstances I am satisfied that the best interests of the children requires that the parents have equal shared parental responsibility for the children.
Further, I am satisfied that the children’s best interests will be served by orders which provide for them to spend longer periods of time with the father moving, in due course, to an equal time arrangement.
I am satisfied that the orders as sought by the father are in the children’s best interests, although I propose to delay the implementation of increases to his time. I am supported in the view that those proposals are in the children’s best interests by Ms B’s oral evidence given on the first and last day of the hearing.
In making that finding I am conscious of the mother’s opposition to any extension of time due to her concerns for the children’s safety when in the father’s care. I am however satisfied that there is no evidence to support the mother’s contention that the children are at risk in the father’s care; indeed, the evidence of both the independent experts, Ms B and Dr H, supports a finding that the father poses no risk to the children. Further, the evidence of Ms B supports a finding that the children have secure attachments to both parents, enjoy the time spent with their father, and exhibit no fear or concern when in his care.
I do not consider the orders sought by the mother as set out in Exhibit R2 as being in the best interests of the children. Those orders are in almost identical terms to those made at the interim hearing between the parties in August 2012. They were orders which were then appropriate having regard to the children’s very young ages and stages of development and the live issues yet to be determined. I am satisfied that having regard to the strength of the relationship between the children and the father and the father’s continued engagement with counselling and completion of the above mentioned parenting and behaviour programs that it is appropriate that there be a gradual increase in the time they spend with the father. The orders I make will recognise the children’s primary attachment to the mother at this time as they will provide that the children will continue to live with the mother for greater periods of time. However, they will provide the children with the opportunity of spending longer periods with the father and will culminate in a sharing of time to take effect in the middle of 2016 when the children will then be aged eight and almost seven years.
The parties are largely in agreement as to the periods of time the children should spend with each parent on special days. Accordingly, I will make orders for the children to spend time with their parents on the children’s birthday, the mother’s birthday, the father’s birthday, Father's Day and Mother's Day.
The father also seeks orders with respect to travel outside the Commonwealth of Australia. Neither party indicated any imminent plans to travel overseas with the children. Neither party gave evidence as to the need for such orders. Neither counsel for the father nor the mother addressed me in closing submissions in relation to that issue. In the circumstances I will not make orders as sought by the father with respect to permission to travel overseas. In the event that either party wishes to undertake overseas travel with the children in the future, and in the absence of agreement, it will be necessary for application to be made to the Court.
The father also sought an order that the mother be restrained from relocating the children permanently outside of the Melbourne metropolitan area. Again, this was not a matter that was addressed in evidence or in closing submissions. There is no evidence that the mother has any proposal to relocate outside the Melbourne metropolitan area. She lives in inner-city Melbourne. She has work based in Melbourne. The parties’ eldest child is settled at school in Melbourne. Having regard to those circumstances, I am satisfied that there is no need for an order as sought by the father to restrain the mother from relocating.
CHILD SUPPORT
The parties entered into a Binding Child Support Agreement on 16 September 2013 (“the agreement”). A copy of the agreement is marked as Exhibit A4. Recital 2(j) of the agreement confirms that the parties intend the agreement to be registered with the Child Support Agency pursuant to the provisions of Part VI of the Child Support Assessment Act1989 (“The Assessment Act”).
Paragraph 3(b) of the agreement provides that the husband is liable to pay periodic child support at the rate of $1,200 per child per month, “the first such payment to occur on 31 October 2013 and then on the last day of each month thereafter (it being noted that the husband has already made the payment for the month of September)”.
Paragraph 3(i) of the agreement provides as follows:-
The husband and the wife agree that the husband is liable to pay child support for the period from the date of the original assessment until the date of this agreement, with the total amount for this period being equal to the monies already paid for that period the effect that no arrears remain payable and no over-payment is created up to the date of this agreement.
It is evident from the clauses identified above that the intention of the agreement was that as and from 16 September 2013, being the date of the agreement, the agreement was to cover the field with respect to the father’s obligation to pay child support. Further, it is evident from paragraph 3(i) of the agreement that it was intended that there would be no arrears or over-payments payable for the period up to the date of the agreement.
At the time the agreement was entered into both parties were represented. Annexure B to the agreement is a certificate provided by the mother’s then solicitor confirming that he had advised the mother as to the effect of the agreement on her rights and as to the advantages and disadvantages to her of making the agreement.
The husband deposes at paragraph 33 of his affidavit filed 14 February 2014 that due to delays, the agreement was not lodged with the Child Support Agency until 4 November 2013. As the agreement was not registered with the Child Support Agency within 28 days of being signed, from the Agency’s perspective it did not take effect as and from 16 September 2013 (as was intended pursuant to paragraph 3(b) of the agreement). Rather, the Child Support Agency implemented the terms of the agreement as from its date of registration on 4 November 2013.
As a result of the delay in registration, the Child Support Agency continued to calculate the father’s liability to pay child support in accordance with the assessments of child support for the periods 1 July 2013 to 7 October 2013 and 8 October 2013 to 3 November 2013, both dated 25 February 2014 (“the assessments”). Accordingly, notwithstanding the terms of the agreement, the Child Support Agency assessed the father as having a child support liability pursuant to the assessments for the period 16 September 2013 to 30 October 2013 inclusive.
The father’s evidence was that he had complied with the terms of the agreement which required him to make payments direct to the mother rather than to the Child Support Agency.
At paragraph 34 of his trial affidavit filed 14 February 2014 the father deposes as to the correspondence passing between the parties’ solicitors regarding the arrears calculated by the Child Support Agency. Seemingly, those arrears could have been expunged by the mother forwarding a letter to the Child Support Agency confirming that pursuant to the terms of the agreement no arrears of child support were due and payable pursuant to the assessments.
The mother refused to provide such confirmation to the Agency. At the hearing it was submitted by the mother that the above interpretation of the agreement was not correct. The mother submitted that the correct interpretation of the agreement was that the father was liable to pay child support for the period 16 September 2013 to 30 September 2013, notwithstanding the terms of paragraph 3(b) of the agreement as detailed above. I do not accept that submission. Paragraph 3(b) of the agreement clearly states that:-
·The father has already made the payment for the month of September; and
·The first payment due under the agreement is payable on 31 October, 2013.
Accordingly, I am satisfied there is no basis for the mother’s claim that she is entitled to arrears of child support pursuant to the assessments for the period 16 September 2013 to 30 September 2013 inclusive.
During the course of the three-day hearing before me I was not addressed by counsel for the father as to the basis upon which the father sought the orders with respect to the agreement as set out in Exhibit A1, largely due to the parenting issues being the parties’ primary focus.
As a result of that omission I made an order in Chambers on 7 May 2014 requiring the parties to appear at Court on 16 May 2014 to make further submissions as to the Court’s power to make orders as sought by the father with respect to child support.
On 16 May 2014 the solicitor for the father appeared. The mother appeared by telephone link (with the father’s consent) due to illness. That day submissions were made on behalf of the father with respect to the orders he sought in relation to child support. At the commencement of those submissions the father’s solicitor sought and obtained leave to file a further Minute of Order setting out with greater precision the orders sought by the father. That Minute is Exhibit A6.
It was submitted on behalf of the father that what was sought was a departure from the assessments of child support to provide that the child support payable by the father pursuant to the assessments for the period from 16 September 2013 to date is nil. Currently arrears outstanding pursuant to the assessments, together with penalties and interest, stand at approximately $3,400.00. It was submitted that the effect of such an order would be to discharge the arrears and ensure that the operation of the agreement would “cover the field” and the father’s liability for child support would arise only in accordance with the terms of the agreement.
It was submitted on behalf of the father that pursuant to s 116(1)(b) of the Assessment Act that the father had standing to apply to the Court for an order in the special circumstances of the case as the father and the mother were parties to an application pending in the Court. It was submitted that the interests of the parties would best be served by the Court hearing and determining the issue in conjunction with the other applications before the Court.
I am satisfied in the special circumstances of this case that it is appropriate for the Court to determine the issues with respect to child support. This matter as identified above has a long litigation history. The parties have recently entered into the agreement, the intention of which was to resolve issues between them with respect to child support. The question of whether or not the mother is entitled to the arrears as calculated by the Child Support Agency should be determined without delay to put an end to the conflict between the parties.
The father relies upon s117 of the Assessment Act for the making of the order sought by him. Section 117(1) provides as follows:-
(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.
Sub-section (2) of s 117 describes the grounds for departure. The father’ solicitor submitted that the father relied upon s 117(2)(c)(ii) which provides as follows:-
For the purposes of sub-paragraph (1)(b)(i), the grounds for departure are as follows:
(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:
(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.
It was said on behalf of the father that the fact that the parties had entered into a Binding Child Support Agreement and that the father had made payments to the mother pursuant to the terms of that agreement during a period when child support liability was continuing to accrue under the assessments was a special circumstance which justified a departure order.
In Gyselman & Gyselman (1992) FLC 92-279, the Full Court said at 79,065:-
Section 117(2) sets out the grounds for departure for administrative assessment. Each of those grounds is prefaced by the words, “in the special circumstances of the case”. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery’s case (page 77,897), Kay J adopting the view in Philippe & Philippe (1978) 90-433 at page 77,202 in a different context, said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation of the application of the particular grounds in s 117(2) must be guided by that qualification.
At the conclusion of the submissions on behalf of the father the mother sought an adjournment to enable her to consider the provisions of the Assessment Act relied upon by the father. Given that the mother was representing herself and having regard to the complexities of the legislation with respect to child support, I acceded to that application and the matter was listed for further hearing on 21 May 2014. That day the mother made submissions in response to the father’s submissions.
It was submitted by the mother that the father had not established that there were special circumstances which would justify a departure pursuant to the provisions of s 117(2) of the Assessment Act.
In support of that submission, the mother relied upon the fact that the father has failed to meet his obligations pursuant to the terms of the agreement since February 2014.
I reminded the mother that the focus of the father’s application was the arrears that have accrued under the assessments for the period 16 September 2013 to 4 November 2013, not arrears which may be payable pursuant to the agreement. During her evidence, the mother conceded that the father had met his obligations pursuant to the agreement for the months of October 2013 and November 2013, albeit that his payment was received late on 7 November 2013 and 2 December 2013 respectively. I confirmed to the mother that the orders sought by the father would not impinge upon the mother’s entitlement to enforce the terms of the agreement.
There is no application before me with respect to the allegations made by the mother during her submissions that the father has failed to comply with the terms of the agreement since February 2014. The father’s solicitor indicated to the Court that the father denies that allegation. There is no evidence before the Court in relation to that allegation and I am unable to make any findings in relation to the same.
The mother submitted that the orders I should make with respect to child support are as follows:-
·That the father pay amounts outstanding pursuant to the agreement. For the reasons identified above, I am not able to make orders as sought;
·That the father be prohibited from offsetting periodic payments of child support against non-periodic payments of child support pursuant to paragraphs 3(c) and 3(d) of the agreement. This order relates to the mother’s allegation that the father has not complied with the terms of the agreement. Again, for the reasons identified above, I will not make orders as sought;
·That any arrears discharged be referable to the 2013 period when the parties were bound by the assessments.
In my view the existence of the agreement, that the father has made payments in accordance with the provisions of the agreement and the fact that notwithstanding those payments, the father has continued to accrue arrears of child support pursuant to the assessments (the operation of which was intended to cease upon the commencement of the agreement) give rise to a special circumstance which justifies the making of the departure order sought.
I am satisfied that the agreement entered into by the parties establishes a ground for departure pursuant to s 117(2)(c)(ii) of the Assessment Act. Further, I am satisfied that in the special circumstances of this case as identified above, that it is just and equitable and otherwise proper to make an order as sought by the father. Were a departure order not granted in this instance, the father would continue to have liabilities pursuant to both the agreement and the Assessment Act. Such a circumstance would give rise to a grave injustice to the father and was clearly not the intention of the parties as is confirmed at paragraphs 3(b) and 3(i) of the agreement.
Accordingly, I will make orders as sought by the father the effect of which will be to ensure that there is no liability for child support pursuant to the assessments as and from the commencement of the operation of the agreement on 16 September 2013.
THE ORDERS
The orders I propose, subject to any submissions as to form are as follows:-
1.That all prior parenting orders relating to the children C born … 2008 and D born … 2009 shall be and are hereby discharged.
2.That the mother and the father have equal shared parental responsibility for the children.
3.That the children live with and communicate with the father as follows:-
(a) From the date of these orders until 6 October 2014 in a two-week alternating cycle as follows:-
(i)In week one from the conclusion of child care/kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of child care/kindergarten/school or 9.30 am Friday;
(ii)In week two from the conclusion of child care/kindergarten/school or 3.30 pm Thursday until 6.30 pm Sunday;
(b) As and from 6 October 2014 until 26 June 2015 in a two-week alternating cycle as follows:-
(i)In week one from the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Friday; and
(ii)In week two from the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Monday;
(c) As and from 26 June 2015 until 11 July 2016 in a two-week alternating cycle as follows:-
(i)In week one from the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Friday; and
(ii)From the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Tuesday;
(d) As and from 11 July 2016 on a week about basis with changeovers to occur at the conclusion of school or 3.30 pm Friday (whichever is the earlier) each;
(e) For one half of each of the term school holidays as agreed and failing agreement:-
(i)For the first half of the school term holidays in 2014 and each alternate year thereafter from the last day of term until 12.00 noon on the middle Saturday of the term holiday period; and
(ii)For the second half of the school term holidays in 2015 and each alternate year thereafter from 12.00 noon on the middle Saturday of the term holiday period until the commencement of child care/kindergarten/school or 9.00 am on the first day of the new school term;
(f) During the long summer vacation period as follows:-
(i)For the period commencing in December 2014, the father’s time pursuant to order 3(b) continues until 6.00 pm Boxing Day and thereafter the children live with the father for the following periods:-
A.From 6.00 pm 26 December 2014 until 6.00 pm 2 January 2015;
B.From 6.00 pm 9 January 2015 until 6.00 pm 16 January 2015; and
C.From 9.00 am 26 January 2015 until 6.00 pm 28 January 2015;
(ii)In the long summer vacation period commencing in December 2015, and each alternate year thereafter for one half of the said period as agreed and failing agreement for the second half in the period commencing 2015 and each alternate year thereafter and for the first half in the summer holiday period commencing in 2016 and each alternate year thereafter, the summer holiday vacation period being calculated as commencing on the last day of the school year until 6.00 pm two days prior to the commencement of the new school year.
(g) On C’s birthday if she is not in the father’s care as follows:-
(i)If the birthday falls on a school day, for a period of three hours at times to be agreed and failing agreement from 3.30 pm to 6.30 pm;
(ii)If the birthday falls on a non-school day, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;
(h) On D’s birthday if he is not in the father’s care as follows:-
(i)If the birthday falls on a kindergarten day or school day, for a period of three hours at times to be agreed and failing agreement from 3.30 pm to 6.30 pm;
(ii) If the birthday falls on a non-school or kindergarten day, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;
(i) On the father’s birthday when the children are not otherwise in his care as follows:-
(i)If the birthday falls on a weekday, for a period of three hours at times to be agreed and failing agreement from 3.30 pm to 6.30 pm;
(ii)If the birthday falls on a weekend, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;
(j) On the Father's Day weekend from 4.00 pm on the Saturday preceding Father's Day until the commencement of day care/kindergarten/school on the Monday after Father's Day;
(k) For Christmas as follows:-
(i)In 2014 and each alternate year thereafter from 12.00 noon Christmas Eve until 3.00 pm Christmas Day; and
(ii)In 2015 and each alternate year thereafter from 3.00 pm Christmas Day until 6.00 pm Boxing Day;
(l) As may otherwise be agreed between the parties from time to time.
4.That the children live with the mother at all other times.
5.That the father’s time with the children pursuant to paragraphs 3(a) to (f) inclusive resume at the commencement of each new school term as if uninterrupted by the school holiday period.
6.That the father’s time with the children pursuant to paragraph 3 hereof be suspended as follows:
(a) For Christmas as follows:-
(i)In 2014 and each alternate year thereafter from 3.00 pm Christmas Day until 6.00 pm Boxing Day;
(ii)In 2015 and each alternate year thereafter from 12.00 noon Christmas Eve until 3.00 pm Christmas Day;
(b) For one half of the school term holidays at times to be agreed and failing agreement as follows:-
(i)For the first half of the school term holidays in 2015 and each alternate year thereafter from the last day of term until 12.00 noon on the middle Saturday of the term holiday period; and
(ii)For the second half of the school term holidays in 2014 and each alternate year thereafter from 12.00 noon on the middle Saturday of the term holiday period until the commencement of school or 9.00 am on the first day of the new school term;
(c) During the long summer vacation period as follows:-
(i)In the long summer vacation period commencing December 2014 as agreed between the parties and failing agreement as follows:-
A.From 6.00 pm on 2 January 2015 until 6.00 pm on 9 January 2015; and
B.From 6.00 pm on 16 January 2015 until 9.00 am on 26 January 2015;
(ii)In the long summer vacation period commencing December 2015 and each alternate year thereafter, for one half of the long summer vacation period at times to be agreed and failing agreement for the first half in the holidays commencing December 2015 and each alternate year thereafter and for the second half of the school holiday period commencing December 2016 and each alternate year thereafter (the long summer vacation period being defined as commencing on the last day of the school year until 6.00 pm two days prior to the commencement of the new school year;
(d) In the event that C’s birthday falls during the father’s time as follows:-
(i)If it falls on a school day, for a period of three hours as agreed and failing agreement from 3.30 pm until 6.30 pm; and
(ii)If it falls on a non-school day, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;
(e) In the event that D’s birthday falls during the father’s time:-
(i)If it falls on a non-school or kindergarten day for a period of four hours on the birthday at times to be agreed and failing agreement from 9.00 am until 1.00 pm;
(ii)If it falls on a school or kindergarten day for a period of three hours as agreed and failing agreement from 3.30 pm to 6.30 pm;
(f) In the event that the mother’s birthday falls during the father’s period of time at times to be agreed and failing agreement from 9.00 am to 1.00 pm; and
(g) On Mother's Day from 4.00 pm on the Saturday preceding Mother's Day until the commencement of kindergarten/school on the Monday following Mother's Day.
7.For the purposes of changeover, the father shall collect the children from school or after-school care and return them to school or before-school care, but in the event that changeover at school or childcare is not possible the father will collect the children at the commencement of his time from McDonald’s in E Street, Suburb F and the mother shall collect the children at the conclusion of the father’s time from McDonald’s in E Street, Suburb F.
8.That each party notify the other as soon as practicable of any accident or illness requiring either of the children to have medical treatment, and both the father and the mother be permitted to attend any specialist medical appointments and in the event of hospitalisation, the hospital.
9.That the mother and the father keep the other notified of any change of address or telephone numbers within seven days of any such change.
10.That the mother and the father be permitted to communicate by email and SMS text messaging in respect of the following matters:-
(a) The children’s health (including but not limited to emotional and physical health);
(b) Arrangements for the children’s extra-curricular activities; and
(c) Arrangements for the children’s schooling and childcare arrangements.
11.That the mother and the father by themselves, their servants and agents be and are hereby restrained from:-
(a) Denigrating the other or any member of their household to or in the presence of the children; and
(b) Discussing these proceedings or showing the children any documents from these proceedings.
12.That in the event that either party intends to travel within Australia but outside the State of Victoria with the children, they provide to the other parent:-
(a) At least 14 days’ notice of any intended travel, such notice to be given in writing with such notice to include a copy of the itinerary for the children, return tickets and contact details for the children during such travel;
(b) Such time not to interfere with the other parent’s time with the children pursuant to these orders unless otherwise agreed between the parties in writing.
13.That the mother and the father each do all such acts and things as may be required to authorise:-
(a) The children’s child care/kindergarten/schools to communicate with the other parent and to provide to the requesting parent (at that parent’s expense) copies of all school reports, notices, photograph order forms and any other documentation ordinarily provided to parents;
(b) Both parents’ attendance at all extra-curricular and child care/kindergarten/school events ordinarily attended by parents;
(c) The children’s medical practitioners and specialists to communicate with the other parent and enable them to provide to the requesting parent (at that parent’s expense) copies of all reports, notices, correspondence and any other documents ordinarily provided to parents;
(d) The children to each be issued with an Australian passport when requested by the other parent to do so, with the mother to hold the passports other than during those times when the father requires them for the purpose of travel pursuant to any orders of the Court, the cost of any passport application for the children to be shared equally by the parents;
14.That the mother and the father each be permitted to communicate with the children by telephone during periods when the children are in the other parent’s care as follows:-
(a) The children may telephone either parent at any reasonable time;
(b) By telephone each Tuesday and Thursday between 6.00 pm and 6.30 pm.
15.That as soon as practicable the parties attend upon a psychologist as nominated by Ms B, family consultant for the purposes of therapeutic non-reportable counselling regarding the implementation of these orders, and thereafter continue to attend such therapeutic counselling sessions as may be reasonably recommended by the nominated therapist.
16.That the cost of attendance upon the therapist nominated by Ms B shall be shared equally between the parties and in the event that a party elects to see that therapist on an individual basis for additional sessions, the cost of those additional sessions be at the cost of that party.
17.That pursuant to s 117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable by the father to the mother in respect of the children C born … 2008 and D born … 2009 for the period 16 September 2013 to the date of these orders (“the period”).
18.That the father’s liability pursuant to the assessment for the period be equal to the amount paid by him to the mother for the period (including the value of any non-agency payments credited for the period), the effect being that there be no arrears of child support payable by the father to the mother and no over-payment created pursuant to the assessment for the period.
19.That all extant applications be otherwise dismissed.
20.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 12 June 2014
Associate:
Date: 12 June 2014
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Procedural Fairness
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