Xydis and Poniros
[2010] FMCAfam 169
•25 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| XYDIS & PONIROS | [2010] FMCAfam 169 |
| FAMILY LAW – Whether risk to child in overnight time with father – whether father’s evidence lost compensation payment gambling should be accepted. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA Child Support (Assessment) Act 1989 (Cth), ss.4, 114, 123, 123A, 124 |
| Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MS XYDIS |
| Respondent: | MR PONIROS |
| File Number: | MLC 13506 of 2007 |
| The Judgment of: | Phipps FM |
| Hearing dates: | 5 & 17 June 2009 |
| Date of Last Submission: | 17 June 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 25 February 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Cooper |
| Solicitors for the Applicant: | Randles Cooper & Co |
| The Respondent appearing in person: |
ORDERS
That all previous orders in relation to the child [X] born [in] 2002 be discharged.
That the husband and the wife have equal shared parental responsibility for the child.
That the child live with the wife.
That the child spend time with the husband:
(a)Commencing 6 March 2010, on alternate weekends from 10.00am Saturday to 5.00pm Sunday;
(b)Commencing with the first of the alternate weekends after 1 June 2010, on alternate weekends from 5.00pm Friday until 5.00pm Sunday;
(c)Commencing with mid year school term holidays 2010, half school holidays as agreed, and if not agreed, the first half commencing at 5.00pm on the first day of the school holidays and concluding at 5.00pm one week later;
(d)Half summer school holidays as agreed, and if not agreed, the first half commencing at 5.00pm on the first day of the summer school holidays and concluding at 5.00pm on the day which is the midpoint of the summer school holidays;
(e)
From 5.00pm on 24 December 2010 until 2.00pm on
25 December 2010 and each alternate year thereafter;
(f)
From 2.00pm on 25 December 2011 until 5.00pm on
26 December 2011 and each alternate year thereafter;
(g)From 4.00pm to 6.00pm on the child's birthday and the father's birthday if not on a day the child is spending time with the husband;
(h)From 10.00am to 6.00pm on Father's Day if not on a day the child is spending time with the husband;
(i)Otherwise as agreed.
The child's time with the father is suspended:
(a)During all term and summer school holidays commencing with mid year school holidays 2010;
(b)If occurring during a time the child is with the husband;
(i)From 2.00pm on 25 December 2010 until 5.00pm on 26 December 2010 and each alternate year thereafter, and from 5.00pm on 24 December 2011 until 2.00pm on 25 December 2010 and each alternate year thereafter.
(ii)From 10.00am on Mother's Day;
(iii)From 1.00pm to 5.00pm on the child's birthday and the mother’s birthday.
Changeovers are to take place at the front gate of the mother’s residence.
The husband is restrained by injunction from allowing or permitting the child to have any contact with Mr S.
The husband is restrained by injunction from exposing the child to cigarette smoke.
The father is permitted to attend parent teacher interviews, school concerts, sports days and the like at the child’s school and to obtain at his own expense copies of school photographs, school circulars, school reports and the like.
Otherwise all extant applications are dismissed.
NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules2001 to reflect the change in spend with times in Order 4(a) to 10.00am Saturday to 5.00pm Sunday.
IT IS NOTED that publication of this judgment under the pseudonym Xydis & Poniros is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 13506 of 2007
| MS XYDIS |
Applicant
And
| MR PONIROS |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband and wife have one child, [X] born [in] 2002. He lives with his mother and since separation has not spent overnight time with his father. His father proposes that he spend over night time with him.
The husband, because of his limited income, pays little child support. In 2006 the husband was paid $279,000 compensation for a work injury. The wife applies for a child-support departure order for a lump sum amount. The husband says he has spent all the compensation money, much on gambling and going out, and has nothing left.
Husband’s time with the child
Background
The husband and wife married [in] 1998. They separated in 2002. They were divorced [in] 2003. They have one child [X] born [in] 2002. He is 7.
These orders have been made in relation to the child:
a)By consent, on 23 June 2004 in the Family Court of Australia that the child live with the wife, and the husband have contact on Sunday from 9.00am until 11.00am at the wife's residence or otherwise as agreed;
b)
By consent, on 12 April 2005, in the Federal Magistrates Court of Australia that the child live with the wife, the husband have contact, for a period of three months for five hours each Saturday or Sunday, then commencing 1 July 2005 Friday at 6.00pm until Sunday at 6.00pm each alternate weekend, commencing
6 September 2007 for one week in each of the school term vacations, commencing December 2008 half the long summer school vacation;
c)By consent of the parties, on 13 September 2006 in the Federal Magistrates Court of Australia all previous orders be discharged, that the child live with the wife and spend time with the husband for six hours each Saturday or Sunday, overnight at the child's request, and school holidays as agreed.
d)On 12 December 2007, after further proceedings had been commenced in the Federal Magistrates Court of Australia that the child spend time with the father from 2.30pm until 8.30pm on Christmas Day 2007.
The orders of 12 April 2005 were made with the consent of the Independent Children's Lawyer as well as the parties. The orders of
13 September 2006 were made with the Independent Children's Lawyer neither consenting nor opposing.
Despite the orders of 12 April 2005 the child has never spent overnight time with his father. What happened between April 2005 and September 2006 is not part of the evidence in this hearing. The wife told Mr. Skoufis, the report writer, that she thought the child should not have overnight time with the husband. That seems to have been her opinion notwithstanding the order for overnight time
Proposals
The husband's current proposal is for alternate weekends 5.00pm Friday to 5.00pm Sunday, half school holidays and alternating Christmases.
The mother's proposal is that the husband's day time be reduced to monthly.
Considerations
Provisions concerning children are contained in Part VII of the Family Law Act 1975 (Cth). The objects of Part VII and the principles underlying it are contained in s.60B. The objects are ensuring that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, protecting children from harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.
Section 60CA provides that the child’s best interests are the paramount consideration in making parenting orders. Considerations for determining a child's best interests are contained in s.60CC.
Section 61DA requires the court to apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility. The presumption is rebutted if there are reasonable grounds to believe there has been abuse of the child or another child, a member of the family, family violence, or if it is not otherwise in the best interests of the child.
If the presumption is not rebutted s.65DAA provides that the court must consider whether equal time with each parent would be in the child's best interests and reasonably practicable, and if equal time is not appropriate, the court must consider whether substantial and significant time would be in the child's best interests and reasonably practical. Considerations for determining what is reasonably practical are contained in s.65DAA(5).
By s.65DAA(3):
a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays;
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The Full Court of the Family Court said in Starr & Duggan [2009] FamCAFC 115 at [38] and [39]:
38.…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,…
Both of the primary best interest considerations are relevant. They are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm. The latter is relevant because the mother raises matters of risk to the child when in the father's care.
Any views expressed by the child, one of the additional considerations is relevant. Although young the child expressed his wishes to the report writer.
The nature of the relationship of the child with each of his parents is relevant. His mother has been his principal carer for the whole of his life, particularly since separation. This position is not challenged. The child's relationship with his father is in issue.
The willingness and ability of each to facilitate the child's relationship with the other parent is relevant. The mother's preference is that the child have no time, and consequently no relationship, with his father. Consequently, if an increase in time is in the child's best interests, clear orders are needed.
The mother questions the father's ability to provide for the practical needs of the child, and so the capacity of each parent to provide for the child's needs is relevant.
The mother alleges instances of family violence in the past, so this consideration is relevant.
Mr. Skoufis prepared a family report. He noted a total lack of communication and trust between the parents. The mother gave him her reasons for wanting to reduce, or ideally stop the time the child spends with his father. They were that the child "may not be safe” with his father as a result of the father using cannabis and/or heroin. She stated that the father has a boarder with him, who is also a drug user. She said that if the child spends time with his father every second weekend “he will miss out on seeing his cousins". She said that the father would be unable to cook, clean or generally meet the child's physical or emotional needs.
The mother claims that the child does not enjoy his time with his father. When asked to elaborate she said that [X] said he didn't like the father's friends. Mr. Skoufis found it difficult to get the mother into discussion concerning the child issues. She was more intent on discussing and focusing on the father’s failings as a parent. Mr. Skoufis had concerns about the mother's presentation and recommended a psychiatric report.
The child told Mr. Skoufis that his father was fun and that he enjoyed playing soccer and footy and playing on his PlayStation. He told
Mr. Skoufis he wants to see more of his father. Mr. Skoufis observed a warm interaction between father and son.
Mr. Skoufis evaluation is that the mother presented as a nervous socially limited person, overcautious and overprotective of her son. Mr. Skoufis considered that the overall presentation of the father as well as the attitude displayed by his son towards him as incongruent with the picture of the father the mother portrayed of him as a parent.
Mr. Skoufis says in his report that the mother’s concerns regarding the father appear to lack substance.
In cross examination a number of matters were put to Mr. Skoufis. The father had outstanding burglary charges and convictions for similar offences in the past. Mr. Skoufis said they are of concern but do not necessarily relate directly to the welfare of the child. Similarly, Mr. Skoufis acknowledged in relation to cooking cleaning and generally caring for the child's physical needs that if father was quite deficient in these skills that might be of concern. However he said he did not get that impression. In terms of the father offering nurturing to the child Mr. Skoufis’s observations of the child and the father did not support that the father was unable to nurture his son.
As to the father losing a large amount of money gambling Mr. Skoufis said that it did not necessarily preclude him from being a loving caring father.
Earlier in the year the father had undergone surgery and had a hip replacement. Mr. Skoufis said that that might limit what the father could offer by way of physical activity but it should not greatly stifle the ability of the parent to meet the child’s basic needs.
The mother alleged to Mr. Skoufis that the father had been a cannabis and heroin user and Mr. Skoufis suggested drug tests. However, in the evidence in the hearing there is no suggestion of current use of cannabis or heroin by the father. He did not have any drug tests, but there is no evidence which suggests that there is any risk to the child from drug use by the father.
In his evaluation Mr Skoufis said there did not appear to be any substantial reasons for the time spent by [X] with his father to be minimal. Mr. Skoufis describes the child as bright and intelligent who clearly expressed a need to spend more time with his father.
Mr. Skoufis said the child’s wishes appear to be heartfelt and genuine. He describes the mother as caring, loving and doting, but very likely overprotective and sheltering. Mr. Skoufis considered that to continue to deny the child time with his father will most likely have negative consequences for the child. One consequence could be that the child opts to leave the care of his mother to live with his father.
The concerns of Mr. Skoufis about the mother's presentation led him to recommend a psychiatric report be obtained. This was done. The psychiatrist found the wife difficult to engage in conversation and extremely anxious. The psychiatrist did not think she had any psychiatric problems but she might suffer from an anxiety disorder. The psychiatrist suspected anxious personality traits which would have impacted on her relationship and have a potential effect on her parenting, particularly causing over protectiveness and filtering her anxiety into her son.
The report writer’s observations show a strong relationship between father and son, contrary to the mother's assertions. Mr. Skoufis considers that an increase in the child’s time with the father is essential to promote the relationship between father and child. The child told Mr. Skoufis he wants to spend more time with his father. Mr. Skoufis sees this as relevant to the child’s relationship with his mother, because if the child does not get to spend more time with his father he might decide that he would rather live with his father than his mother.
The mother's claims that the father cannot provide for the child's needs, including proper meals, are not born out by the report writer’s observations of the child with his father. The father disputes the mother’s claims in any event. The relationship which Mr. Skoufis observed is not one where the child is not cared for properly by the parent.
The mother alleges violence, including encounters after separation. Individual incidents were not examined in the hearing. The parties’ relationship is a conflicted one, but it is not possible to make specific findings. In any event, notwithstanding what has occurred between his parents, the child has a good relationship with his father.
The mother alleges drug taking by the father and overuse of alcohol. These are no more than assertions, and again, the report writer’s observations of the child with his father did not show concern by the child that his father is on occasions unable to care for him because he is affected by drugs or alcohol. The mother expressed concerns about the father's friend Mr S. The father expressed consent to an order that he not permit the child to come into contact with this person. The father also consents to an order that he not expose the child to cigarette smoke.
Mr. Skoufis recommended drug tests for the father before any overnight time. The father, unrepresented, has not done any drug tests. It would be better if he had, but an order conditional upon the father providing clear drug tests will almost certainly lead to further disputes and refusal by the mother to permit the child to go for overnight time with the father. It is better to make an order least likely to lead to further proceedings.
The mother raised the father's criminal record as an issue. It is not such that the child should be restricted in having a proper relationship with his father.
Previous consent orders provided for the parties to have equal shared parental responsibility. The mother’s allegations of violence would, if substantiated, rebut the presumption of equal shared responsibility. I do not consider that there are reasonable grounds to believe that there has been family violence or abuse such as that the presumption should be rebutted.
The conflicted relationship between the parties is such that their ability to consult and reach agreement which an order for shared responsibility brings, is doubtful. I do not consider that this means it is not in the child's best interests for the order to be made. The mother would exclude the father from the child's life if she could. An order for equal shared responsibility will discourage this. It is in the child's best interests to make the order.
Equal time is not sought by the father and is not in a child's best interests or reasonably practicable. The child's principal carer is his mother. The parties conflicted relationship means that they have almost no ability to manage the day to day issues which would arise if there was equal time.
The requirements for each element of substantial and significant time will be met if the order provides for weekend time, Friday night to Sunday night, time during holidays and on birthdays and other special occasions. The father proposes no more than this.
The promotion of the child's relationship with his father and the child's wishes mean that he should be spending overnight weekend time with his father. The matters of risk the mother puts forward are not substantiated.
An introductory period of three months of overnight time on Saturday night only with the father will serve as an introduction to the child and alleviate the mother's anxiety.
Child Support
The husband does not work. He has received a lump sum Workcover payment of $279,000 which he says he has dissipated. The husband pays $31 per month for child support. He has a life interest in his late mother's estate. She died [in] 2007. The executor of her estate, Ms K, gave evidence.
At the time of the husband's mother's death she had a property at Property C. The executor sold the property and purchased Property W, where the husband now resides. He has a life interest in the property.
After the purchase of the Property W property a balance of $140,000 was left. Some money was used for repairs to the property and Ms K lent the husband $25,000 to pay off debts. She said her understanding is that the husband will be entitled to a pension in late 2010 and she then expects him to repay the loan.
A balance of $100,000 is left, deposited in a bank interest bearing account. Ms K pays the rates utilities and insurance for the Property W property and pays the husband $100 a week. She said that if a lump sum order was made against the husband for child support she would not pay it out of the balance she holds. As a matter of law, she cannot. After the husband's death the residuary beneficiaries are the child [X] for 50%, 25% for Ms K’s husband and 25% for his sister. Ms K explained her husband’s parents and the husbands parents both came from the same village and were friends. As the husband's parents got older they asked Ms K to help them with their finances. She was then employed as practice manager for a firm of solicitors, and so the husband’s parents saw her as having the skills to assist them, which clearly she has.
The husband has no prospects of employment. He is dependent on payments from his mother’s estate for current living expenses and in the future will depend upon social service benefits. Consequently, from those sources, he can pay only minimal child-support payments.
The mother’s amended application for child support applies for both a departure from the administrative assessment, an order pursuant to s.124 of the Child Support (Assessment) Act 1989 (Cth) for child support otherwise than in the form of periodic payments and a lump sum order in relation to the husband's liability to pay child support.
Sections 123, 123A and 124 of the Child Support (Assessment) Act1989 (Cth) provide for lump sum payments. Normally the lump sum payment is to the credited against the amount payable under the relevant administrative assessment. Section 124(2) provides for an exception in these terms;
(2)The court may state that the annual rate of child support payable by the liable parent is not to be so reduced only if it is satisfied that, in the special circumstances of the case, 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;
Section 4 of the Child Support (Assessment) Act1989 (Cth) places on parents the primary duty to make maintain a child. The duty to maintain a child has priority over all commitments other than the commitments of the parent to support himself. The nature of the duty is defined by ss.4 and 114.
The wife’s initial affidavit shows that she brought her application based on the belief that the husband is the beneficiary of his mother's estate and that he received a lump sum compensation payment. The husbands interest in his mother's estate is a life interest and so not available for lump sum payment.
The husband says nothing is left of the compensation payment. He identifies some specific amounts spent, totalling $100,000 but says that the bulk of the money was spent on gambling and "going out". His bank accounts were subpoenaed and he was cross-examined about them. They show large amounts being withdrawn, for instance $60,000 at a time. There is nothing left in the bank accounts.
The husband gives no details of dates on which he gambled and amounts he lost on any particular date or any particular occasion. He does not say whether he was on his own or with others when gambling and "going out". He says he does not have a gambling problem now and did not have one prior to receiving the compensation payment.
Ms K said she believes he had a gambling problem but does not now. She plainly considers he has no funds other than those she makes available from his mother's estate. She paid him $25,000 out of the estate to be repaid in the future. If the husband had not gambled the money and has concealed it elsewhere, I am satisfied that Ms K does not know about it and does not consider that it has happened.
Ms K lent the husband $25,000 from the estate so that he could repay debts. She would not have done so if she believed that he had undisclosed sums of money. The husband says he purchased a motor vehicle using some of the money from the compensation payment, but now cannot afford to run it. Ms K said she might consider paying for insurance if a receipt was produced for running costs.
Ms K was trusted by the husband’s parents. Her evidence shows careful administration of the husband’s mother’s estate. If she has an interest it is not to support the husband’s financial interests but to maintain the estate at a maximum because her husband is a residuary beneficiary of 25%. Her belief that the husband has no assets provides some corroboration for the husbands evidence, sufficient that I cannot, on the balance of probabilities, make a finding that he does have hidden assets. Therefore I cannot make an order for a lump sum amount.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Jan Smith
Date: 24 February 2010
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