ZABER & SCARFE

[2016] FCCA 3362

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZABER & SCARFE [2016] FCCA 3362

Catchwords:
FAMILY LAW – Child maintenance – non-disclosure of overseas income by mother.

FAMILY LAW – Children – overseas holidays – capacity of children to make frequent overseas trips to spend time with the mother.

Legislation:

Family Law Act 1975, ss.60CC, 66

Black & Kellner (1992) FLC 92-287

Applicant: MS ZABER

Respondent: MR SCARFE

File Number: SYC 1183 of 2012

Judgment of: Judge Boyle

Hearing dates: 21 and 22 July 2016

Date of Last Submission: 22 July 2016

Delivered at: Sydney

Delivered on: 22 December 2016

REPRESENTATION

Counsel for the Applicant: Mr Bithrey

Solicitors for the Applicant: Barkus Doolan

Counsel for the Respondent: Ms Messner

Solicitors for the Respondent: Blanchfield Nicholls Partners

ORDERS

1. From January 2018 the child X born (omitted) 2008 shall spend time with the mother:

   (a)For the whole of the June/July and September/October school holidays in each year, with one such period to be spent in Australia.

   (b)For the first half of the Christmas school holiday period in 2018/2019 and in each alternate year thereafter, and for the second half of the Christmas school holiday period in 2019/2020 and each alternate year thereafter.

   (c)At such other times as may be agreed between the parties in writing.

2. The mother shall provide the father no less than 8 weeks written notice of the specific dates on which she intends to spend time with the children during each school holiday period and whether that holiday period will be in Australia or overseas.

3. Pursuant to section 66G of the Family Law Act 1975 the mother pay to the father by way of child maintenance:

   (a)The sum of $200 per week per child, such payments to be made fortnightly in advance, the first payment to be made within 7 days of the date of these orders.

   (b)One half of all medical and dental costs for the children, including one half of the costs of the psychologist treating the child Y, subject to any claim to be made on the children’s health insurance.

IT IS NOTED that publication of this judgment under the pseudonym Zaber & Scarfe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1183 of 2012

MS ZABER

Applicant

And

MR SCARFE

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to an application for child maintenance and time orders with respect to the children of the parties, Y, born (omitted) 1999, and X, (“X”) born (omitted) 2008.

2. Maintenance of the children is not subject to the Child Support Scheme as the mother, who is liable to pay maintenance, resides in a non-reciprocating jurisdiction in (country omitted). She has lived there since (omitted) 2014.

3. The dispute with respect to time revolves around the place for holiday time between the mother and children, and the amount of travel involved for the children in spending time with their mother.

Documents Relied On

1. For the mother:

   a)Amended application filed 18 July 2016.

   b)Affidavit of the mother filed 18 July 2016.

   c)Financial statement of the mother filed 18 July 2016.

   d)Case outline document on 19 July 2016.

   e)Minute of Orders provided at the conclusion of the hearing, as amended during submissions.

2. For the father:

   a)Affidavit of the father filed 27 June 2016.

   b)Financial statement filed 27 June 2016.

   c)Affidavit of Mr S filed 27 June 2016.

   d)Case outline document filed on 19 July 2016, which includes minute of orders sought at the hearing.

The Exhibits

1. The following documents were tendered during the hearing.

   a)Wife’s Exhibit 1. Husband's (omitted) Bank account statement for the period 19 December 2011 to 24 May 2016.

   b)Wife’s Exhibit 2. Australian Tax Office Tax Agent Portal printout for (omitted) accessed 14 July 2016.

   c)Wife’s Exhibit 3. Husband’s (omitted) Bank Business Transaction Account printout for the period 1 April 2016 to 30 June 2016.

   d)Wife’s Exhibit 4. Letter to the parties from (omitted) OOSH (omitted) dated 15 December 2015.

   e)Husband’s Exhibit 1. Wife's (omitted) Bank account statement for the period 22 February 2016 to 18 July 2016.

   f)Husband’s Exhibit 2. Letter from (omitted) Council in relation to the wife’s property at (country omitted), dated 12 June 2014.

   g)Husband’s Exhibit 3.  Wife's (omitted) Bank account statement for the period 15 April 2013 to 13 May 2016.

   h)Husband’s Exhibit 4. Wife's (omitted) Bank Mastercard account statement for the period 18 July 2015 to 15 July 2016.

Parenting Orders

1. At the commencement of the hearing, the parenting issues were resolved between the parties, save for one issue. The dispute is where time between the children and the mother should occur as the mother resides in (country omitted). The consent orders of 22 July 2016 specify that time should occur on three occasions each year during the holidays at the conclusion of Terms 2, 3 and 4. The mother seeks that the children spend that time overseas on each occasion; the father seeks that occur on two occasions.

2. The parties have agreed that for 2017, when Y will sit the Higher School Certificate, the children will travel twice to see their mother, and the mother shall travel to Australia on the third of the holiday periods.

3. The dispute is the orders applicable to X from 2018, as Y will have left school and be over the age of 18. X will likely be travelling on his own unless Y is available, and chooses to accompany him.

4. There is no direct flight from Sydney to (country omitted), where the mother lives. The flight to (country omitted) or (country omitted) takes 19 hours, where it is necessary to change planes. The flight from either of those places to (country omitted) extends the travel time by 3 to 4 hours. The mother at times meets the children in (country omitted) or (country omitted) to change planes and fly directly to (country omitted), with a changeover to (country omitted). The mother and children join with extended family there for holidays.

5. X has not yet done the trip to (country omitted) alone. In 2018 he will be nine years old. Initially, the mother gave evidence that X is not affected by jetlag, and that he is a happy traveller. She says he does not get motion sickness as was suggested by the father. She conceded that he does not eat when travelling by plane, saying he is picky about food. In particular, he does not like the smell of food on the plane. He does drink water or juice during the flight.

6. The father says that X takes time to recuperate following his return from overseas travel. This impacts on his readiness for school. The father is of the view that it would be better for X to travel overseas twice, rather than three times a year.

7. All the agreed holidays take place in a period of approximately 7 months, rather than spread over 12 months, being June/July, September/October, and December/January. Each trip overseas involves approximately 40 hours of travel during a 2 week period, and 4 weeks in the Christmas holidays each alternate year. This is an arduous amount of travel for X, now aged 8 years. The long haul flights are without a parent present, and from 2018 he will likely be an unaccompanied minor. It is not surprising that X takes a while to adjust on return. Y has missed days at school following return.

8. The children have been travelling to spend time with their mother since December 2014. They have done so on 5 occasions. The mother also travels to Australia to spend time with the children, and has done so since leaving the country. She has spent time here in November for the children’s birthdays and at other times.

9. Considering the section 60CC factors, the most significant are: the primary consideration of the benefit to X of a meaningful relationship with his mother; the practical difficulty and expense of him spending time with and communicating with a parent, and whether that difficulty or expense will substantially affect his right to maintain personal relations and direct contact with both parents on a regular basis.

10. There is no risk for X that he will be exposed to abuse, neglect or family violence in either household.

11. The issue is whether X travels for all the holiday time with his mother, or whether she shares the travel with him. The time arrangements are not otherwise in dispute. There will be a modest increase in the time he spends with his mother in Australia, as he will not be spending a couple of days each holiday occupied with travel. He is able to maintain relationships with his extended maternal family as arranged by his mother whatever orders are made.

12. Overseas travel has been a feature of X’s life over the past 2 years, and will continue to be so. However, orders that require X to travel alone from nine years of age on three occasions each year, with air travel of about 40 hours on each occasion, places the burden of travel on him, rather than on his mother. There are advantages for X of the mother spending holiday time with him in Australia, where he is able to introduce her to his friends, and she has the opportunity to be involved in his life here. He has the benefit of a meaningful relationship with his mother, with less of the practical difficulties.

Child Maintenance

1. The father sought the following orders in relation to child maintenance, contained in his minute of orders sought.

   16. Pursuant to section 66G of the Family Law Act 1975 the mother pay to the father by way of child maintenance:

   a. The sum of $250 per week per child, such payments to be made fortnightly in advance, the first payment to be made within 7 days of the date of these orders.

   b. One half of all medical and dental costs for the children, subject to any claim to be made on the children’s health insurance

   c. one half of any other extraordinary costs for the children or either of them, provided that the father gives the mother notice in writing of the anticipated cost, and the reason for the expenditure.

   16. [sic] The maintenance to be paid pursuant to Order 16(a) hereof be varied on 1 January in each year (“the review date”) commencing 1 January 2017 to such sum as shall be determined by multiplying the maintenance being paid on the review date by the fraction N/B where “B” is the Consumer Price Index for Sydney (All Groups) published by the Australian Bureau of Statistics (“CPI”) in respect of the quarter year ended on the day 12 months prior to the review date, namely 31 December; and “N” is the CPI in respect of the quarter year ending on the day immediately preceding the review date.

2. The mother sought the following orders in her proposed minute of order.

   1. That pursuant to Section 66G of the Family Law Act 1975 (Cth) the mother and father are to pay direct to the various institutions one-half of the following expenses as and when they fall due:

   1.1. school fees for the attendance by the children at the (omitted) High School and (omitted) Public School or such other school as mutually agreed upon in writing by the mother and the father;

   1.2. compulsory school camps, sports and excursions;

   1.3. agreed sports and extra-curricular activities;

   1.4. all gap hospital, medical and dental costs for the children, not able to be recovered from Medicare or any private health insurance policy maintained in respect of a child, it being NOTED that the children are currently members of the father 's private health insurance policy; and

   1.5. all cost associated with Y's attendance  upon Ms H, Clinical Psychologist or such other Psychologist and Counsellor and/or therapist which Y attends from time to time

   2.     That the obligations of  the mother  to make the payments pursuant  to Order  1, shall be terminated upon the following:

   2.1. The mother being unemployed and having exhausted all leave entitlements she has for a period  of more than 1 month and to remain suspended until the mother  gains employment with no arrears to accrue during the period of suspension of Order 1. Upon the mother obtaining reemployment, the child maintenance to be paid by the mother, shall be varied to such rate as is proportionate to her new income level if her income is less that (omitted) $392,400 per annum so that, for example, if her income is 10% lower than (omitted) $392,400 per annum then the child maintenance payable by the mother shall be reduced by 10%; or

   2.2. a child and/or the children obtaining paid full-time employment; or

   2.3. a child and/or the children living with the mother for greater than 40% of the nights of a calendar year; or

   2.4. the mother residing in Australia or a reciprocating jurisdiction.

   3.     That in the event that the father has first paid the entirety of expenses referred to in Order 1, the mother shall reimburse the father for one-half of the payments made by the father upon receipt by the mother of the tax invoices and/or receipts confirming that the payments have been made by the father or as otherwise evidenced and agreed between the parties.

   4.     That in the event that the mother has first paid the entirety of expenses referred to in Order 1, the father shall reimburse the Mother for one half of the payments made by the Mother, upon receipt of the tax invoices and/or receipts confirming that the payments have been made by the Mother or as otherwise evidenced and agreed between the parties.

   5.     That the father pay the mothers costs of and incidental to these proceedings.

3. The matters that I must take into account are set out at Division 7 of the Family Law Act 1975.

4. Section 66B:

   Objects

   (1) The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.

   (2) Particular objects of this Division include ensuring:

   (a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and

   (b) that parents share equitably in the support of their children.

5. The parents have the primary duty to maintain the children. There is no issue that the mother has the capacity to meet child maintenance for the children, and to share in the costs that the father otherwise bears.

6. With respect to the children’s proper needs, the Court must have regard to the matters in section 66J:

   (i) the age of the child;

   (ii) the manner of the child’s education;

   (iii) any special needs of the child.

7. Y and X both attend at public schools. The fees themselves are minimal, as are the associated expenses. I have no specific evidence of those matters, although it is agreed that the amounts are approximately $400 per annum school fees for Y, and something less than that for X. There are additional costs from time to time for excursions and the like. The proposal initially put by the mother was for her to meet half the school costs, with no specific proposal for payment for any regular periodic amount for either of the children.

8. There are difficulties with respect to the evidence on both sides of the parties’ respective financial positions.

9. The father sets out in his financial statement at Part N expenses incurred for the children. This was the subject of challenge during cross-examination. There has been some double counting with respect to the contributions of the father’s wife set out at Part F. She pays $200 per week towards household expenses, and $238 per week with respect to child care. The father and his wife have a child, A, who is 18 months old.

10. The father’s financial statement at Part N lists child minding costs before rebate as being $100 per week for Y and X and $376 per week for A. The father conceded that $238 is contributed by his wife, so that he actually pays $238 per week total for child care.

11. The father’s wife contributes $200 per week to household expenses. They employ an au pair from time to time. They do not have an au pair at the moment. The total amount of household expenses includes an allowance of $120 per week for an au pair, not currently paid. The total costs listed for Y and X at Part N are $705 per week, which should be discounted to take into account the father’s wife’s contributions.

12. Part N does not take into account matters such as the cost of housing. The father and his wife have a mortgage of approximately $930 per week. There was evidence that the mortgage has recently been increased to meet various expenses, not related to the children.

13. Counsel for the father suggests that two fifths of the mortgage should be attributable to Y and X, as there are 5 people in the household. This amounts to $372 per week. The mother concedes housing costs should be taken into account, but argues that simply dividing the mortgage as suggested would overstate the actual overall expense. It is argued this would be unfair to the mother. I accept that argument.

14. I find that taking into account those matters the proper expenses for the children are $737 per week, taking into account a discounted rate from Part N of the financial statement, and allowing $270 per week with respect to housing costs.

15. The mother has provided no financial records with respect to her income. Her evidence is that she is paid in cash, with tax deducted by her employer prior to her receiving her wages. She is unaware of the rate of tax. She says she receives no documentation at all from her employer regarding her income. She says she has no bank account in (country omitted).

16. Annexed to the mother’s affidavit is a letter from her employer (employer omitted) dated 27 July 2015, addressed ‘To Whom It May Concern’ setting out that she holds the position of associate quantity-surveyor, and earns a monthly basic salary of (omitted) $32,700.[1] The mother says that this is an amount equivalent to approximately $11,848 Australian dollars.

    [1] Mother’s affidavit filed 18 July 2016 at annexure “A”.

17. She provides no independent evidence with respect to her expenses, including rent paid by her in (country omitted) nor costs of airfares for the children. The mother’s financial statement lists $250 per week on airfares for the children; an annual sum of $13,000. That would suggest that she spends $4,333 on each trip, if there are three overseas trips in a year. The mother was challenged about the variability of the airfares; sometimes they change at (country omitted) or (country omitted) for (country omitted), sometimes they fly on to (country omitted). Her evidence about the costs of the various connecting flights was extremely unclear, and not supported by independent evidence.

18. The mother was cross-examined at length with respect to income she receives from a flat that she owns in (country omitted). She conceded that her income over expenses on the property is a little over £1,000 per month. I accept that evidence. The mother says there are significant expenses for building repairs. It was put to her that those expenses have been met. The mother’s evidence was unclear as to any specifics of costs paid and unpaid.  

19. It was submitted on the father’s behalf that the $250 per week per child sought could be paid largely by the rental income from the (country omitted) property, without impacting on the income she receives from her employment in (country omitted). I accept this is the case.

20. The mother has chosen not to provide evidence that properly discloses her income. I do not accept that the multinational company who employ her could not provide her with a payslip setting out her income, additional entitlements if any, and any tax paid, were she to request it.

21. There is clearly a significant expense for the mother in spending time with the children in terms of flight costs, and accommodation when the mother travels to Australia. These expenses could be considered as a special circumstance[2]. Her lack of disclosure has made a proper assessment of those costs, and the burden of those costs on her income and financial resources, impossible.[3]

    [2] Section 66K(e) Family Law Act 1975.

    [3] Black & Kellner (1992) FLC 92-287.

1. There were difficulties with the father’s financial disclosure, and the accuracy of his financial statement, as referred to above. The problems this caused in discerning the father’s financial position were not of the same order as the mother.

2. There has been an issue between the parties about payment of a psychologist for Y. The mother is currently meeting that expense of $220 each fortnight. Costs for counselling were previously met by the father.

3. The orders sought by the mother require the parties to keep each other informed of the various expenses paid for the children, so that each meet half the expenses. The mother’s own evidence is that she and the father do not speak, and have not done so for a long time. To require the parties to communicate and agree over expenses for the children is not something that the Court could contemplate, given the likelihood of disagreement and dispute.

4. I propose ordering that the mother pay a periodic amount for each of the children of $200 per week, and each meet one half of the costs of Y’s psychologist. The mother’s contribution to the costs of Y’s psychologist is $120 per fortnight. This is only payable whilst Y attends a psychologist. That amount shall be deducted from her weekly payment.

5. The mother shall be directed to pay her contribution to the psychologist’s fees directly to the father, so that the costs are met by him at first instance. The orders provide for the children to receive a proper level of financial support from their parents.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Date:  22 December 2016