Winter and Winter

FAMILY COURT OF AUSTRALIA

WINTER & WINTER

[2009] FamCA 1123

FAMILY LAW – CHILDREN - Child related proceedings – matter remitted for re-hearing – mother seeks to relocate from Sydney to the Gold Coast - orders by way of departure from the child support assessment are sought – mother asserts she cannot afford to live in Sydney

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

AMS v AIF; AIF v AMS (1999) CLR 160; (1999) FLC 92-852
McCall v Clarke (2009) FLC 93-405
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FLC 93 345

APPLICANT:

Ms Winter (also known as Ms Lay)

RESPONDENT:

Mr Winter

FILE NUMBER:

SYF

3583

2006

DATE DELIVERED:

24 November 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

2-3 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell

COUNSEL FOR THE RESPONDENT:

Mr Page

Orders

The application of the mother and the application of the father for a departure from the administrative assessment of Child Support is dismissed.
The mother and father have equal shared parental responsibility for the long term care, welfare and development of the children, O born … April 2000 and R born … January 2004 (“the children”).
The children live with the mother.
The children shall spend time with the father:
(a)Each alternate weekend from after school on Friday until the commencement of school on the Monday, or Tuesday if the Monday is a public holiday.
(b)During school term every Thursday from after school until the commencement of school on Friday.
(c)For half of all New South Wales school holidays as agreed between the parents, and, failing agreement:
(i)For the first half of the school holidays in each even numbered year commencing in 2010 and each alternate year thereafter, with the period to commence at the conclusion of school on the last day of school term and end at 12.00 noon on the middle day of those school term holidays.
(ii)For the second half of the school holidays in each odd numbered year commencing in 2009 and each alternate year thereafter, with the period to commence at 12.00 noon on the middle day of those school term holidays, and end on the first day that the children are due to attend school.
The children live with the mother and father on occasions of special significance to the children and to the parents to enable the children’s attendance at such events as follows:
(a)Should Easter not fall in the school holidays then the mother will spend time with the children in odd-numbered years from 5.00 pm on Easter Thursday to the commencement of school the following Tuesday.
(b)Should Easter not fall in the school holidays then the father will spend time with the children in even-numbered years from 5.00 pm on Easter Thursday to the commencement of school the following Tuesday.
(c)Should Mother’s Day fall on a weekend when the children are spending time with the father then the mother shall spend time with the children from 5.00 pm on the day prior to Mother’s Day until 5.00 pm that day.
(d)Should Father’s Day fall on a weekend when the children are spending time with the mother then the father shall spend time with the children from 5.00 pm on the day prior to Father’s Day until 5.00 pm on that day.
(e)On the children’s respective birthdays the children will spend time for a period of two hours with the parent with whom they are not residing from after school until 5.30 pm should their birthdays fall on a school weekday and from 5.00 pm the day before the child’s birthday until midday of the child’s birthday should their birthdays fall on a weekend period.
(f)If the children are not otherwise living with the mother on the mother’s birthday then they shall spend time with her from the day before her birthday until before school the following day or if her birthday falls on a weekend, then from 5.00 pm on the evening before the mother’s birthday until 5.00 pm on the mother’s birthday.
(g)If the children are not otherwise living with the father on the father’s birthday then they shall spend time with him from the day before his birthday until before school the following day or if his birthday falls on a weekend, then from 5.00 pm on the evening before the father’s birthday until 5.00 pm on the father’s birthday.
(h)In the event that either parent has a significant or special event such as a family gathering, christening or wedding then the parent shall give notice to the other parent of their desire for the children to spend time with them and attend that event and the parents may agree to vary the time that the children are to live with each of them so as to permit the children to attend that event, and where a variation of these Orders is required then the parents shall arrange makeup time.
The children shall be collected by the father at the commencement of each period they live with him to effect a changeover at any given time provided in these Orders.
The children shall be collected by the mother at the commencement of the time they spend with her to effect a changeover at any given time provided in these Orders.
Each parent shall be responsible for the children’s day to day care, welfare and development whilst they are in their respective care.
When the children are living with each parent they shall have unrestricted communication by letter, telephone, email or other electronic means, with the parent with whom they are not residing.
Each parent shall, as soon as is reasonably practicable, notify the other parent in the event of the children suffering serious accident or illness.
Each parent shall keep the other parent informed in relation to all medical, dental or other health related treatment undertaken by the children whilst they are in the care of the other parent.
Each parent will consult with the other parent in relation to all matters concerning the children’s education.
The husband pay to the wife the sum of $1,200 per week, such payments to be made fortnightly by the husband depositing $2,400 into a bank account nominated by the wife, and the first payment to be made 14 days after the date of these orders, and continuing thereafter until the expiration of three (3) years from the date of making these Orders.
Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 (Cth), 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 under the pseudonym Winter & Winter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3583 of 2006

MS WINTER (also known as MS LAY)

Applicant

And

MR WINTER

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the court are parenting proceedings relating to two children of the parties, namely O, born in April 2000 and presently aged 9 years and R, born in January 2004 and presently aged 5 years. The mother and father each seek provision for an alteration in the arrangements for the children to spend time with each of them.
The mother seeks certain orders for the variation of the assessment of child support, as does the father. The father seeks a variation of a spouse maintenance order previously made and orders by way of departure from the child support assessment to provide that he pay the private school fees for the school presently attended by the children.
Central to the dispute, however, is the request by the mother for an order to relocate the children to Queensland or, more precisely as she said in her oral evidence, to the Gold Coast of Queensland. This would involve a significant alteration of the time the children are able to spend with the father who says he will not take up residence on the Gold Coast.
The mother says that her application is really predicated on the truth of the assertion that she cannot afford to live in Sydney and that in the Gold Coast she has been offered rent-free accommodation with her parents and income from a job with a family company in the sum of $60,000 gross per annum.
The mother asserts, and the father agrees, that her present financial position does not, without him supplementing her income, enable her to live in Sydney. He proposes that in addition to the provision of child support including school fees, he will pay to the mother by way of spouse maintenance the sum of $600 per week for a period of three years. The mother says that in the event she is not permitted to relocate to Queensland she will need more than that to live at a standard of living that is, in all the circumstances reasonable for her and the children, certainly if she is to continue to reside in the S area where the father and she presently live.
The father’s income and expenditure are finely balanced, although in his expenditure is the sum of $30,000 per year for private primary school fees for the children. He says that with paying that sum all he can afford by way of spouse maintenance is the sum of $600 per week. He says, however, that if the Court made a decision that spouse maintenance should be a higher sum to retain the children in Sydney, he says that that end would be more important for the children than continued private schooling.
Neither party challenges the other’s importance to the children and the importance of a continuing relationship between the children and the other parent. Indeed, the mother concedes that there will be negative aspects for the children’s future welfare of her removal of the children to the Gold Coast in the near future. The mother further concedes that it would be in the children’s best interests if it were possible for both parents to live together in close proximity, and probably in Sydney, where the children have an established home. However, the mother says that financial concerns and financial disadvantage to her of this course render such a decision difficult, short of providing the children with a much reduced standard of living.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father was born in 1961 and is presently aged 47 years.
The mother was born in 1964 and is presently aged 45 years.
The parties commenced cohabitation shortly prior to their marriage.
The parties were married in 1998.
In April 2000 the parties’ first child, O, was born and is presently aged 9 years.
In January 2004 the parties’ second child, R, was born and is presently aged 5 years.
In January 2005 O commenced kindergarten at S Preparatory School, a local private school.
On 19 February 2006 the parties separated under the one roof.
On 18 May 2006 the mother vacated the former matrimonial home with the two children. The father continued to reside there.
In June 2006 the mother obtained rental accommodation at O Street, S, paying rent of $825 per week on a six month lease.
On 4 June 2006 the mother and the father reached agreement on interim parenting arrangements. The arrangement was an informal one, and the mother deposes that it was agreed that between 7 June 2006 and 19 July 2006 the father would spend time with the children on each alternate weekend from Friday evening to Sunday evening in addition to each Wednesday evening from 6.00 pm until 7.30 pm.
In June 2006 an administrative assessment was issued by the Child Support Agency and the father was assessed to pay $26.67 per month. The mother’s only support at that time was the sum of $232.26 from Centrelink.
On 19 July 2006 the father’s time with the children extended to include overnight Wednesday to before school Thursday, each week. The children continued also to spend time with the father each alternate weekend from Friday evening to Sunday evening.
On 7 August 2006 proceedings commenced between the parties on the application of the mother seeking orders in relation to the settlement of property, spousal maintenance and child support.
On 11 September 2006 the following interim orders were made by consent:
1.That all interim applications be stood over to the Judicial Duty List at 10am on 18/10/2006.
2.That the parties attend confidential counselling with a Family Consultant on a date to be fixed but prior to 18/10/2006.
3.That any further material in relation to interim issues be filed and served by 4pm on 3/10/2006.
That Pending Further Order and Without Admission
4.The children [O] born […]/4/2000 and [R] born […]/1/2004 (“the children”) shall live with the mother.
5.That the parents shall have equal shared parental responsibility for the children.
6.That the children shall spend time with the father:
a.During school term from 6pm Wednesday until before school (or daycare) the next day.
b.During school term from 6pm Friday to 5pm Sunday each alternate weekend commencing 22/9/2006 and resuming after the September 2006 holidays on the weekend of 27/10/2006
c.From 9am on 8/10/06 to 5pm on 12/10/06
d.From 12noon on 13/10/06 to 5pm on 17/10/06
e.Not on the night of 18/10/06 but instead from 6pm on Friday 20/10/06 to 5pm on 21/10/06.
7.That unless otherwise specified changeover shall take place at the home of the wife.
8.That the husband pay to the wife the sum of $1000 per week payable on or before 13/9/06 and thereafter every Wednesday.
9.That the husband meet all tuition fees charged by any school or daycare attended by the children as and when they fall due.
10.That the husband shall continue to
a.maintain the children and the wife in their current level of coverage with Medicare Private
b.pay the accounts relating to the wife’s mobile phone service.
11.That the husband meet all outgoings in relation to the former matrimonial home as and when they fall due including mortgage and loan repayments to WestPac [sic], rates, insurance and utilities.
12. That the costs of each party of today are reserved.
The Court notes:
13.That the parties agree that these Orders are without prejudice as to the rights of each party to pursue different Orders at the hearing of the outstanding interim applications.
14.That the parties agree that the characterisation of any amount paid by the husband pursuant to these Orders is a matter for the trial Judge.
15.That the parties agree to use their best endeavours to have another adult with them in the car while they are travelling any significant distance in the country with the children.
16.That the parties agree that on the weekend of 22/9/06 the period will commence after school on 22/9/06 and end at 6pm on 24/9/06 to allow the children to attend a family function in [regional New South Wales].
On 6 November 2006 further interim Orders were made:
IT IS ORDERED
1.The children [O] born […] April 2000 and [R] born […] January 2004 are to live with the father:
a.each alternate weekend from after school on Friday until the commencement of school on Monday; and
b.each Wednesday from after school until the commencement of school or day care on Thursday,
c.from 9:00 am on 10 December 2006 until 9:00am on
15 December 2006;
d.from 9:00 am on 20 December 2006 until 12:00 noon on 25 December 2006;
e.from 9:00 am on 30 December 2006 until 9:00 am on
4 January 2007;
f.from 9:00 am on 9 January 2007 until 9:00 am on
14 January 2007;
g.from 9:00 am on 19 January 2007 until 9:00 am on
24 January 2007;
h.for one half of each of the 2007 school holidays and unless the parties agree to the contrary that is to be the first half.
2.At all other times subject to the parties’ agreement the children are to reside with the mother.
3.For the purposes of these arrangements the father will collect the children at the commencement of each period the children live with him and he shall collect the child [R] from the mother immediately after the child [O] is collected from school, and the mother will collect the children at the conclusion of each occasion except that in relation to each Wednesday the father will collect the children from school and from the mother and return the children to school and day care the following date [sic].
4.The husband is to pay to the wife $1,200.00 per week and the first payment is to be made this Wednesday, 8 November 2006 and payments every Wednesday thereafter.
5.By consent the husband pay the amounts referred to in Orders 9, 10 and 11 of the interim orders made on 11 September 2006 as set out hereunder:
“9.That the husband meet all tuition fees charged by any school or day-care attended by the children as and when they fall due.
10. That the husband shall continue to:
a.maintain the children and the wife in their current level of coverage with Medicare Private.
b.pay the accounts relating to the wife’s mobile phone service.
11.That the husband meet all outgoings in relation to the former matrimonial home as and when they fall due including mortgage and loan repayments to Westpac, rates, insurance and utilities.”
IT IS NOTED
6.The character of all payments is ultimately a matter for the Trial Judge in the final property proceedings.
IT IS FURTHER ORDERED
7.That application for interim child support departure is otherwise dismissed.
8.By consent within 21 days from today’s date the husband pay to the wife $12,000.00 for the purposes of buying her a motor vehicle.
9.The parties are to attend a conciliation conference at 9:15 am on 23 January 2007.
10.Leave is granted to the parties to approach the Listing Manager for the first date of a Less Adversarial Trial in relation to parenting AND the Court noted the parties are giving consideration to consent in relation to property proceedings.
11.Pursuant to s.65DA(2) and s.62B, the particulars of obligations these orders create and the particulars of the consequences that 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.”
On 1 December 2006 the mother vacated the O Street residence and obtained new rental accommodation at S Road, S, paying $1,000 per week rent, which increased to $1,250 on 1 July 2007.
On 17 May 2007 a Family Report was prepared by the Family Consultant (“the earlier Family Report”).
On 15 November 2007 the mother leased new premises at C Road, S and paid $850 per week rent.
On 6 June 2008 Final Orders were made by Justice O’Ryan in relation to applications for parenting orders, property settlement, spouse maintenance and departure from a child support assessment.
On 11 June 2008 the father filed a Notice of Appeal and an Application for a Stay in relation to the parenting orders only.
On 24 June 2008 orders were made by consent which provided, inter alia, for the children to continue to spend time with the father pursuant to the November 2006 orders pending the hearing of the Appeal and for the father to pay the mother $1,731 per week by way of spouse maintenance until the date of delivery of the Appeal Judgment, together with the children’s school and day-care fees, medical insurance and the mother’s mobile telephone service accounts.
On 27 October 2008 Judgment was delivered on the father’s Appeal, in relation to parenting orders. The Appeal was allowed and the matter was remitted for re-hearing.

On 28 October 2008 the mother’s solicitors initiated a series of correspondence with the father’s solicitors and requested that the father continue to pay spouse maintenance in accordance with the Orders of 24 June 2008.
On 17 February 2009 a further Family Report was prepared by the Family Consultant (“the later Family Report”).
In July 2009 the former matrimonial home was sold.
On 2 November 2009 the hearing commenced before me, by way of the

re-hearing, referred to above.
The children continue to live with the mother and spend time with the father pursuant to the orders of 6 November 2006.
In addition to the child support assessment, the father pays the mother $1,200 per week spouse maintenance. It is the mother’s evidence that her solicitors received a letter from the father’s solicitors and that thereafter the father reduced the spouse maintenance payments in accordance with Order 31 of the June 2008 Orders, and has continued to pay spouse maintenance at that rate.
The mother and father each seek variations to the child support assessment amount, which is currently assessed at $314.04 per week according to the mother and $272.46 per week according to the father.
The father seeks that, in addition to the amount of child support for which he is liable under any Child Support Assessment from time to time, he pay or cause to be paid additional child support, namely the children’s school fees, cost of extra-curricular activities and private health insurance. The father seeks that if the mother does not relocate to the Gold Coast that he pay to the mother maintenance of $600 per week commencing 1 January 2010, with such payments to be made fortnightly and to continue until whichever happens earlier - the expiration of a period of three years from the date of the Orders or upon the mother entering into a de facto relationship for any period exceeding three months.
The mother seeks that pursuant to s117 of the Child Support (Assessment) Act 1989 (Cth) there be a departure from the administrative assessment dated

3 April 2009, and any subsequent assessment. The mother seeks that the rate of child support payable for the children be fixed at $300 per child per week if the children reside in Sydney and proposes that that sum be reduced to $200 per child per week in the event that an order is made permitting her to relocate.
In this matter, the financial claims are an integral part of the determination of these parenting matters.
It is, for example, conceded by the father that the mother requires assistance from him by way of maintenance in order that she might live in Sydney at a standard of living that is in the circumstances appropriate.
The mother says that she is unable to earn a sufficient income in Sydney and that given her expenses, including the cost of housing, is unable to afford to remain living in Sydney at an appropriate standard of living which is reasonable in the circumstances. The mother proposes that a reasonable standard of living could be attained by her if she were permitted to live in Queensland, given that she has accommodation available on the Gold Coast rent-free and without the outgoings applicable to rented premises. Furthermore, the mother has been offered a job with a salary of approximately $60,000 per annum, and by an employer (her brother) who will be sympathetic to the time demands of her need to fulfil her obligations as a mother.
Accordingly, I first turn to the question of the parenting orders that I should make and then, associated with that, a consideration of the other claims made in these proceedings.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration (see section 60CA). In determining what is in the children’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see section 60CG). This is not a case where any such order has been made nor is it suggested that the children in the care of either parent would be at risk.
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it. In this case in particular I am required to consider, inter alia, the following principles:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
…
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and …
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will, in these reasons, deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
There is no evidence which would satisfy me that it would not be in the best interests of the children in this case for their parents to have shared parental responsibility and neither parent seeks any order to the contrary.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the children’s parents are to have equal shared parental responsibility.
On the evidence before me, to which I will later refer, I have come to the conclusion that at the present time equal time with each parent is not an appropriate order to make in the interest of these children and the parties are agreed on that. The children, as I see it, will have significant enough changes in their lives to cope with, without departing from yet another working routine which has served them well.
The father proposes that in the future an order be made that the children spend equal time with each parent.
I indicated that I would not make such an order at this time by reason of the unpredictability of the nature of the children’s needs in the future and the parties’ relative capacities to fulfil those needs at the time that such an order would come into operation.
It was urged on me that such a decision might reduce the possibility of further litigation, but it seems to me that that possibility exists whether I make the order or not. I take the view that an attempt to predict what might be a satisfactory state for these children in the future is outweighed by the desirability of tailoring an order which then best meets their needs and interests and the parties’ then capacity to provide for these matters.
In addition, whilst the present proceedings are occasioned by a major decision which the mother seeks the Court make, and which will have an immediate and important effect on the children’s lives, it is the evidence on the other hand that there has, in the parenting of these children, been a high degree of co-operation and unity between the parents in working out regimes which best assist their children.
I have some confidence that when the children attain greater age and their own social life and their needs and desires change and it becomes an appropriate time to revisit the arrangements set forth in these orders that the parties will, consistent with their positive behaviour hitherto, engage in the fruitful pursuit of agreement on that subject.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

Both parties concede that the children presently have a meaningful relationship with each of them. The evidence of the Family Consultant, and whose evidence was not the subject of cross examination by either side, included the following:
On the day of interviews, [O’s] and [R’s] presentation was consistent with their parents’ description of them. Both boys presented as having warm, loving relationships with each of their parents. They clearly consider their mother and their father to be important to them and enjoy spending time with each of them. …
There were also clear indications that both children’s sense of family remains positive, healthy and continues to encompass both parents, each other and various members of the maternal and paternal extended families.
In addition, each parent acknowledged the importance to the children of the other parent in their lives and acknowledged that the other is a good parent and that maintaining that relationship offers significant benefits to the children.
From the time of the parties’ separation in 2006 the children have spent substantial and significant time with each of their parents. Each of the parents has accepted that the arrangements they have made have been in the best interests of the children. The parties have hitherto seen those arrangements as being reasonably practicable. Indeed the mother says that, optimally, they would be maintained.
However, the mother also says that those arrangements were only able to be maintained in that way by her borrowing money from her parents to fund her property litigation and which loan she has been obliged to repay, and has subsequently done so. The mother estimates her current capital at $100,000 but says she wishes to apply some part of that to the purchase of a car. In the circumstances she says it is not practicable for her to continue to live in Sydney and that therefore the arrangements in that event are no longer practicable.
The mother and father have been able to co-operate in relation to parenting matters and play an important role in nurturing the children. Each of them has been involved in “hands on” parenting, as the father put it.
There was a clear concession from the mother that the children would lose the benefit of the present level of the father’s active involvement in their lives if the Court permitted her to relocate. She saw that admitted loss however as balanced by the advantages that would accrue to the children in having a stable environment and a happier and more independent mother who would not, if they moved to Queensland, be dependent on the future earnings of the father.
One could not say that the evidence of each of these parties was that it was not to the benefit of these children to maintain a meaningful relationship with each of their parents. It furthermore seems to me that the Report of the Family Consultant is furiously in agreement with that proposition.
The father’s case is that there is no cogent evidence brought by the mother which establishes that the existing regime is no longer practicable for the children.
I find that it is in the interests of these children that their close and loving relationship and involvement with their father not be impeded by their removal from Sydney to Queensland, with the concomitant disadvantages to them conceded by the mother and referred to by the Family Consultant.
I do not think that the proposals put forward by the mother as to the maintenance of contact with the father by the children in the event of relocation will afford these children the same quality of support and nurturing from their father, such support which they have a right to expect.
I do, however, find that the disadvantages to the mother of the refusal of her request must be remediated for the balance to remain in favour of this position. It is not in the interests of these children that their mother whom they love is forced to live in less than reasonable circumstances in Sydney.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
On any view of the present case these children in the care of either or both of their parents would not, on the history of this matter, be the subject of or exposed to abuse neglect or family violence nor any physical harm.
The father asserts that the children will suffer a sense of loss if they are removed to the Gold Coast and his involvement in their lives becomes less and particularly in circumstances where equal time with each parent was a possibility in the future. Given the closeness of the relationship of these children to their father this is probably true and it did not appear to me that the mother cavilled with this position.
It is also true to say that if the mother is required to live in less than reasonable circumstances in Sydney she will be unhappy and that unhappiness could rebound on the children. I am satisfied, however, that reasonable circumstances for the mother’s continued residence in Sydney can be provided by a combination of payments of spousal maintenance and child support and the reasonable utilisation by the mother of her earning capacity in Sydney.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The Family Consultant reports that R expressed no views about the present dispute and indeed even if he had, his age would mean that they would lack weight. O was however aware of the dispute and that was causing him some concern because of the discord between the parents on this subject and that he felt that one or other of his parents might not be happy with the outcome. On the whole it seemed to me that the children would prefer the present situation to remain in existence. The children are young and whilst some weight can be given to their views it is not determinative of a decision in this case.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The children are reported as above in terms of their relationship with their parents, and their relationship with each other, which notwithstanding the difference in their ages, also appears to be strong. They also appear to have appropriate relationships with each of their maternal and paternal extended family. Whatever the decision the Court makes they will be able to maintain those relationships to the same extent as they do now at least, and if relocation were permitted then this would be so to a greater extent with respect to the mother’s parents.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
There is no evidence that these parties are other than willing to work to maintain the relationship between the children and the other parent.
The Family Consultant says of the present situation:
There were clear indications that both parents are continuing to work hard at attempting to maintain a respectful and co-operative parenting relationship and to shield [the children] from their conflict. As referred to in the previous report, there is evidence that both [the father] and [the mother] continue to acknowledge and encourage [the children’s] relationship with the other parent and that they recognise the benefits to the children’s ongoing development of an arrangement that provides them with the opportunity to spend regular time with each of them. …
That relationship would, however, not be the same one as at present in the event that relocation was permitted.
Although the mother proposes that the father have the children in Sydney one weekend per month and visit the Gold Coast one weekend per month he would not be able to involve himself to the same degree in the children’s schooling and peer group contacts as he is able to, and does, at present. The mother also proposes school holiday time with the father subject to him having time to devote to them during such times.
The mother, in her case outline document filed in these proceedings, says of the circumstances if permission were to be granted for relocation:
It is not and can never be dressed up as the same as the arrangements that currently exist. It is, however, the best compromise in the circumstances in which the parties find themselves.
It may well be an option not but it is not the only position which can be adopted. I do not think that there has been any real effort by the mother to pursue alternatives for her own employment in Sydney.
The mother has, in her evidence, made reference to some three or four inquiries which she undertook in the S area and which is hardly a survey of the available job market. It seems on the history of the mother’s employment and her offered employment she is engaging in a restricted and superficial examination of jobs that might well not make the best use of her talents. She says that she wants to be employed in a way which is sympathetic to her role as primary carer of her children and that is understandable. However, the disruption to these children in their present relationship with their father on the basis that inquiries of three or four retailers in the S area did not yield satisfactory employment I find is not a sufficient enquiry justifying an alternative arrangement. The present arrangements are better suited to the needs, interests and welfare of these children.
Those circumstances as the mother sees them are encapsulated in the following terms in her case outline document:
The mother’s application to relocate to Queensland is financially based. The mother quite simply says that she cannot afford to continue to remain living in Sydney and to provide a measure of financial security and lifestyle for her two children. The mother does not wish to remain dependent on the husband financially, and he does not wish to continue to support her beyond the payment of child support and a modest amount of spousal maintenance [referring to the proposed spousal maintenance of $600.00 per week by the husband]. The mother quite simply cannot remain living in Sydney. The cost of housing, her limited skills and her desire to remain available to her children are such that she cannot financially remain living in Sydney.
The desire of the mother to remain independent of the father is in keeping with the attitude of many in the community, and indeed is one which is echoed in section 81 of the Act. It is, however, only in circumstances where such finality is possible that it can occur. This is a case where it presently cannot, if the interests of the children are to be served. The mother’s desire to be more independent of the father would be better served by a more extensive search for gainful employment.

As I have said I am not convinced on the evidence before me that the mother has fully explored the possible sources of income available to her and has not sufficiently explored what housing might be available to her.
The father has said he will move, if necessary, from S. He has expressed a view as to the desirability of a location within easy commuting distance of the Sydney CBD but there has been little co-operative attempt to resolve a place of living which has the potential to meet the needs of both the parties, namely ease of commuting for the father and the mother’s need for cheaper accommodation. In my view the children’s interests will be better served if the parties concentrated more on agreement on these matters. It may well be that the father’s desires for short commuting between his home and place of work will also have to be modified to promote the welfare and best interests of his children.
The desire of the mother to pursue another career is also a reasonable ambition but I am not satisfied that she has explored the possibility of doing that in Sydney.
The desire of the mother to live with her family and siblings is also understandable but the nature of parenting is that one’s desires are subject to one’s obligations to further the welfare and best interests of one’s children.
It has been put that the father could move to Queensland. He says that this is not possible and that he will not do it. He has undertaken responsibilities as a partner in his new professional firm and has offers of potential equity interests. It is put that the father and the mother are in no different position in relation to the relocation. The father concedes he might procure employment on the Gold Coast at significantly less than he presently earns but that it would not be employment in his area of speciality. In addition, the father asserts that there would be no opportunity to grow his income, income which hitherto at least has been the primary source of the support of the children. Thus, in this sense the parties are not in the same position, since such a move would deprive the children of the level of financial benefit that their father has provided and will provide in the future if things go well.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
It is clearly conceded by the mother that the participation of the father in the children’s lives and the nature of that participation will change in the event that she relocates to Queensland. In the earlier Family Report, the Family Consultant says as follows:
The strength of the children’s existing relationships with their father has been built on his consistent involvement in routine, everyday activities. If the children were to move to Queensland, these opportunities would be limited and the father may lose touch with the details of their daily development that help maintain the close parent-child relationship. In these circumstances, particularly due to [R’s] young age, it is assessed that the prospect of the children being able to maintain as close a relationship with their father as they currently have, is unlikely.
There is a greater awareness in the children of this dispute between their parents and in her later Family Report, the Family Consultant says:
... the boys are now clearly aware of the primary issue of disagreement between their parents, that is, whether they will all live in Sydney or live with their mother in the maternal family’s home in [the Gold Coast], Queensland. However, it is to the parents’ credit that they (i.e. [O] and [R]) have continued to be largely shielded from the full parental dispute, as well as from any difficulties that exist in the parental relationship. Nevertheless, while [R] does not present as unduly focussed on or concerned about this issue and did not express any views that favoured either side, there were indications that [O’s] awareness is beginning to cause him some concerns …
[O] predicts that his father would be “very sad” in the event that he and his brother were to live in Queensland. He said that this makes him feel “not so good”. He was less sure about how his mother might feel/react but speculated that she would probably be “happy” if they lived in Queensland and feel “O.K” if they all remained living in Sydney. …
[O] thought it was important that the Judge knows how much he loves both his mother and his father. Aside from his parents living in the same house, [O] thought that it would make his life easier were they to remain living in close proximity to one another and if “all of this was just finished” (i.e. the Court proceedings).
[O] spoke favourably of the current term-time arrangement – albeit that there are still occasions when he misses the parent he is not with. He anticipated feeling sad in the event that he was to see less of either of his parents. However, if the arrangement had to change he thinks it very important that he and his brother continue to be able to spend “lots of time” with each parent. [O] did not appear to feel very positively towards a week about arrangement, primarily because he thinks a week is a “pretty long time” to be with one parent and not to see the other.
The Family Consultant further provides the following in the later Family Report:
They [the children] have obviously benefited from having two competent parents involved in all aspects of their lives. Therefore, if it is financially viable for [the mother] to remain in Sydney, [the children’s] ongoing health and development will undoubtedly benefit from an arrangement that allows for this to continue. If [the father] and [the mother] were to continue to live in relatively close geographical proximity to one another, [the children] continue to spend significant and substantial time with each of them, they (i.e. [the children]) would not have to suffer any of the detrimental effects or impacts of their parents living in different states. It would also ensure that the warm, affectionate relationships they currently share with each of their parents are given the best possible opportunity to be maintained.
(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
There would clearly be an expense in the children maintaining any relationship with the father if the relocation were permitted and that expense would include air fares and accommodation in Queensland for the father when he visited. I do not think that such expense is a decisive factor in the decision the Court must make since it seems likely that on the basis of the father not paying private school fees in Sydney that such expense probably could be borne. However, that expense would not, even if undertaken, in my view compensate these children for the loss of the present relationship and all that goes with it.
The father has set out circumstances relating to his financial position in both his affidavit material filed in these proceedings and in his Financial Statement, as set out in these reasons. The father says he will incur additional costs if the mother relocates with the children to Queensland, and estimates the cost of spending time with the children on the Gold Coast as being between $1,099 to $1,421 and includes air fares, accommodation and car hire. The father also sets out his evidence in relation to additional costs likely incurred by the mother when travelling to Sydney with the children.
The mother also provided an estimation of the costs involved in the children spending time with the father if they were to relocate to the Gold Coast. The mother summarises these costs in her affidavit filed 30 September 2009, and her evidence is that the father’s costs in travelling to the Gold Coast would be approximately $100 to $159 per week. The mother estimates that the cost of monthly return air fares to Sydney would be $97 to $183 per week. She points also to the accommodation costs.
(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
There is in this case no suggestion that the parents are unable to cater for the children’s needs in this regard.
(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
The children are young and there is nothing in their lifestyle which is of particular note except that they have had a private school education until now.
It was put to the Family Consultant that given the parties’ available resources, it might not be possible to continue with private schooling for the children, although it seems it was the desire of both parents that such schooling continue.
The Court put to the father that he had conceded that the mother could not live at a reasonable standard in Sydney without financial help at the present time, to which proposition he agreed, at least to the extent of his proposed support.
It was noted by the Court that it might come to the conclusion that more was required than he proposed to pay and that on his statement of financial circumstances that would involve a forgoing of private schooling. He accepted that if the Court took that view then it was probable that the children would have to change school, but he saw that as a lower priority than the children remaining living in Sydney.
(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
This is not applicable to this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There is no suggestion that the conduct of these parents in this regard is other than exemplary.
(j)any family violence involving the child or a member of the child’s family
There is no evidence of any family violence.
(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
There is no evidence of any such order.
(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 clearly would be desirable to achieve this end. However, the parties are likely to have to agree on a number of matters in the event that relocation is not permitted and they include the geographic location of their respective residences and place of schooling for the children and the like.
Given the capacity of these parties to agree on most matters it would be hoped that they could agree on these matters. The Court has some reason to believe they might.
The Court declines to make an order for expansion of the time presently spent by the children with the father and indeed for the future, since it is not able to determine at the time proposed for such an extension what the requirements of the children and the capacity of the parents will be. If the relationship remains as it is, then it is hoped that those matters can be agreed between the mother and father and, if not agreed by negotiation, then be agreed through undertaking mediation or by seeking the assistance of alternative dispute resolution providers, and not by application to the courts. Indeed, such processes would be fine exemplars for the children as to the manner of adult resolution of disputes.
However, the issues are important and the parents are committed to their parenting and it is entirely possible that the Court’s assistance might further be required on these matters.
(m)any other fact or circumstance that the court thinks is relevant
The mother asserts that she is unable to continue to live in Sydney.
In her Financial Statement filed 30 September 2009 the mother sets out her total average weekly income as being $1,736 and her total personal expenditure as being $2,017. In her affidavit material the mother says such expenses are excluding her personal mobile telephone bill and health insurance expenses.
In his Financial Statement filed 22 October 2009 the father sets forth his total average weekly income as being $4,843 and his total personal expenditure as being $5,454.
The mother says that she is unable to supplement her income by employment in Sydney.
The mother gave evidence that the extent of her inquiry as to possible employment was investigation of three or four retail sales assistant jobs in S.
The mother says that if she remains in Sydney she will be unable to obtain

full-time employment, or employment which offers a “decent level of income”. The mother estimates that the maximum amount she is likely to earn from

part-time employment in Sydney, and taking into account the children’s school holidays, is a net figure of between $385 and $495 per week.
The mother says that residing on the Gold Coast would enable her to work

full-time as she would have the assistance of her family, who could provide child care at no cost. In addition, as mentioned earlier in this judgment, the mother says she has an offer of employment from a company through which her brother conducts his business. It is the mother’s position that this offer of employment gives her the opportunity to develop a career, and that such an opportunity would not be available to her in Sydney.
However, the mother conceded that she had made no inquiry in Sydney as to whether a job similar to that which was available to her in Queensland might also be available in Sydney.
Given the limited nature of the mother’s inquiries the Court cannot come to the conclusion that the mother is unable to be employed in Sydney, although it is conceded that whilst the children are at their present age it is reasonable that she would wish to work on a limited hours or part-time basis to fit in with their schooling needs.
Of relevance is that the mother is presently not in paid employment and has not been employed other than a mother for the past nine years. It seems that the mother has however skills covering a range of possible employments. Prior to the birth of the parties’ first child, the mother was however employed in the hospitality industry in a management role. It is her evidence that she would be unable to undertake the evening and weekend work which is involved in that industry and that given her age and the length of time which she has been away from the hospitality industry would mean she has no employment prospects there.
However, the mother has undertaken part-time business and computing courses which, she says in her affidavit filed 30 September 2009, she hopes will enable her to obtain office employment. The mother has otherwise been seeking to obtain retail employment and estimates the maximum she is likely earn.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been no family violence as has been set out earlier.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is no reason for the presumption not to apply and neither parent seeks that.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
The order I propose to make will not afford the parties equal shared time with the children at this time. Neither party seeks such an order and nor will I so order, for the reasons referred to in the report of the Family Consultant and largely related to the age of the youngest child and the present demands of the father’s new enterprise. However, I see that as a matter which might require reconsideration in about three years time.

The Law in relation to relocation

In the case of AMS v AIF; AIF v AMS (1999) FLC 92-852, the High Court of Australia (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, Callinan J dissenting), his Honour Justice Kirby established that in parenting cases where relocation is proposed the welfare or best interests of the child remains the paramount consideration, but not the sole consideration. His Honour

Justice Kirby said (footnotes omitted):
… a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.

It follows then that in the Full Court of the Family Court of Australia

(Bryant CJ, Faulks DCJ and Finn J) in Taylor & Barker (2007) FLC 93-345, the majority (Bryant CJ and Finn J) said at 81,912:
… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224).
The Full Court recently reviewed the authorities on relocation in McCall v Clarke (2009) FLC 93-405 and endorsed that statements made in Taylor & Barker (2007) (supra), confirming (at 83,468 - 83,471) that it is necessary for the Court to canvass the advantages and disadvantages to the children of the competing proposals.
In Starr & Duggan [2009] FamCAFC 115, the Full Court (Boland, Thackray and Watts JJ), in considering the approach to applications involving the relocation of a child, said:
33. The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
34. The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.
35. In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
36. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
37. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

In this case there is at present no issue as to with whom the children should reside, although the father seeks an order that in the future the children reside equally with the father and the mother.
In considering sections 60B(2) and 60CC (2) and (3) it should be noted that unless the legislation so provides, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides.
The matters set forth in section 60CC must be considered. I must therefore identify the competing proposals and they are as set out above and evaluate each of the proposals advanced by the parties.
The first proposal of the mother is that the father relocates to Queensland with the mother and resides there and that they continue with the joint parenting of the children. The mother identifies this as her least practical alternative and with that assessment, for the reasons referred to above, I agree.
I also find that it does not serve the interests of the children because it will withdraw from them the expectations that both of their parents had for them as to the level of their support and the standard of living in which they would be raised. True, that expectation has to be modified in the present case because of the truism that the cost of maintaining two households is greater than the cost of maintaining one household. Additionally, the loss of the pre-separation standard of living as a consequence of the breakdown of family relationships practically is a loss perhaps not shared equally, but shared nonetheless by all the members of the family, including the children.
The second proposal is that the father and mother continue to reside in Sydney. This proposal is put aside by the mother on the basis that she says she cannot simply afford to do so. The father has proposed supplementing the mother’s financial position by an amount of $600 per week, with such sum not required to be reduced by any earnings that she could procure. In addition, the father says that he will continue the payment of child support in the amount as presently assessed and the children’s school fees.
Pursuant to the interim consent orders of 11 September 2006, the father agreed to pay the mother $1,000 in maintenance. In addition, the father was to pay O’s private school fees and R’s then day-care fees, in addition to private health insurance expenses for the mother and children and the mother’s mobile telephone account. The father was also responsible for meeting the mortgage repayments and outgoings of the former matrimonial home. This amount was subsequently increased to $1,200 per week as a result of orders made on 6 November 2006. At that time the father was also paying child support as assessed, which at that time was $26.67 per month, and which the father says has later varied between $1,180 and $1,365 per month. The mother’s evidence is that the Child Support Assessment is presently for $314.04 per week.
The parenting orders made by Justice O’Ryan were stayed conditionally upon the father paying to the mother $1,731 per week spouse maintenance, in addition to the continuation of the father’s payment of the expenses referred to above and orders were further made in relation to an interim distribution of the proceeds of sale of the former matrimonial home and also in relation to the costs of that application. Those orders were made by consent on 24 June 2008. However, the mother says she did not receive such maintenance payments until her solicitor wrote to the father’s solicitors, and that this resulted in payments of $1,200 per week. The father has previously provided the mother with funds to purchase a motor vehicle and has paid her mobile telephone account.
The father is employed as a professional and joined a firm as a partner on 1 September 2009, and his income has been previously set out in these reasons. He seeks to have taken into account his assertion that he must make his own provision for taxation liabilities and superannuation, and that he requires a replacement motor vehicle.
As a result of the sale of the former matrimonial home the mother received $375,242.17 from the net proceeds of that sale. Following the repayment of liabilities, including monies borrowed from her parents, credit card debts and legal fees the mother was left with $135,242. On 3 August 2009 the mother received $17,046.65 from the Child Support Agency by way of arrears of child support, and received two additional payments totalling $7,500 from Centrelink, in August 2009.
In her affidavit filed 30 September 2009 the mother sets out her current assets as totalling $169,375, not including furniture and personal effects of an unknown value. The mother will also have a liability for further legal costs, estimated at $35,000 and estimates that at the end of 2009 she will have $115,000 remaining, after taking into account legal fees and a shortfall in her income.
At Annexure “K” to the mother’s affidavit filed 30 September 2009, the mother sets out her income as totalling $1,688 and her expenses as totalling $2,017. Her weekly income is comprised of $1,200 in spouse maintenance payments, $92 from Centrelink, Child Support of $314 and estimated interest on invested funds of $82.
The mother thus deposes to having a shortfall in her income of approximately $329 per week, which she says is being funded by drawing on capital. She has otherwise been reliant on maintenance payments from the father and borrowings from her parents.
The mother says that if she remains living in Sydney then her income will range from nil to approximately $30,000 per annum. Consequently, the mother says she would be seeking an order that the father contribute towards the children’s costs in the amount of $300 per week, per child.
The father clearly has an ability to provide the mother with more support than the proffered $600 per week in the event that his obligation to pay private school fees was discharged. In his evidence the father said it was more important for the children to remain in Sydney than go to a private school. Furthermore, it seems clear, having regard to the mother’s present financial position, that in order to provide a reasonable standard of living for her the amount of maintenance she receives will need to be increased above what is proposed by the father and the consequent loss of private school places for the children will have to be coped with.
The mother contends that the schedule of her costs at Annexure “K” of her affidavit previously referred to, comprise her basic costs only and do not make allowances for “holidays or extra treats”. At present the mother says she is unable to pay for additional expenses for the children, including music lessons, sporting costs and school tuition and tutoring. The mother says that since separation they have been unable to afford a holiday other than to the Gold Coast. The mother further asserts that the costs as set out in her affidavit also do not include her mobile phone and health insurance expenses, which would amount to a further $30 to $35 per week.
Having said that, I observe that the mother has an earning capacity and she should seek to find employment to utilise that capacity in Sydney. In order to try to encourage that search it is my intention to make an order for spousal support which will have a limited duration, being three years.
It is my view that with application to the pursuit of cheaper accommodation and some other reasonable savings that the sum I will order will be, with the income capable of being derived from the mother’s capital, sufficient to provide for her and the children a standard of living that is reasonable in all the circumstances. It is noted that the mother will continue to receive child support payments from the father.
I propose to order the payment of maintenance in the sum of $1,200 per week for a period of three years.
The mother will be able to meet a reasonable rental and her other reasonable costs and with the child support have sufficient funds to meet her reasonable costs of living. She will be able to supplement her income by employment and investment to some degree.
I do not in light of that spouse maintenance order propose to make any departure order in respect of child support and will dismiss the applications before me.
In my view the orders that I will make in this matter will contribute to the mother’s capacity to continue to live in Sydney appropriately. To do so with greater comfort will require of the mother an application to the task of procuring appropriate employment and perhaps alternative premises at a lower rent. It will require of the father that he prioritise the needs of the children above the difficulties which might otherwise be experienced by him in commuting.
Above all, they will afford these children the opportunity of the continued

co-operative parenting and involvement of the two people they most love in their lives and enable those people to rejoice in their children’s successes, and support them in their failures, and make the fullest contribution possible to enable them to achieve their maximum potential. I find that this is in the best interests of the children.
I therefore propose to make the orders in relation to parenting and other orders as set forth above.

I certify that the preceding one-hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 24 November 2009

[2009] FamCA 1123

24 November 2009

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