Zhelan & Yazhu
[2022] FedCFamC1F 693
Federal Circuit and Family Court of Australia
(DIVISION 1)
Zhelan & Yazhu [2022] FedCFamC1F 693
File number(s): MLC 5610 of 2020 Judgment of: WILLIAMS J Date of judgment: 14 September 2022 Catchwords: FAMILY LAW – PARENTING – Where there are two children of the marriage aged six and two – Where the disputes narrowed during the course of the trial – Where there is disagreement regarding the configuration of the future shared care arrangements for the children – Where the parents are unable to agree on the children’s schooling – Spousal maintenance – Where the father submits the mother has not demonstrated she is unable to adequately support herself and he is not in a financial position to pay spousal maintenance and the mother seeks spousal maintenance until the youngest child commences school. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 72, 75
Cases cited: Banks & Banks [2015] FamCAFC 36
Bilz & Breugelman [2013] FamCA 578
Brown & Brown (2007) FLC 93-316
In the marriage of Bevan (1995) FLC 92-600
Stewart & Stewart [2017] FamCAFC 67
Division: Division 1 First Instance Number of paragraphs: 91 Date of hearing: 8–10 & 18 August 2022 Place: Melbourne Counsel for the Applicant: Mr Foo Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Mr Allen Solicitor for the Respondent: Van Beveren Lawyers Counsel for the Independent Children's Lawyer: Mr Radich Solicitor for the Independent Children's Lawyer: Perisic Lawyers ORDERS
MLC 5610 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZHELAN
Applicant
AND: MS YAZHU
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
WILLIAMS J
DATE OF ORDER:
14 september 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the children, X born in 2016 (“X”) and Y born in 2020 (“Y”) (“the children”).
3.The children live with the mother.
4.The children spend time with and communicate with the father as follows:
(a)commencing 22 August 2022:
(i)in week one, from 9.00 am Thursday until 5.00 pm Friday; and
(ii)in week two, from 9.00 am Friday until 5.00 pm Sunday.
(b)commencing 19 September 2022:
(i)in week one, from 8.30 am Wednesday until 5.00 pm Thursday; and
(ii)in week two, from 8.30 am Wednesday until 5.00 pm Sunday.
(c)commencing 24 April 2023 (Start Term 2):
(i)in week one, from 8.30 am Wednesday until 9.00 am Friday; and
(ii)in week two, from 8.30 am Wednesday until 5.00 pm Sunday.
(d)commencing 10 July 2023 (Start Term 3):
(i)in week one, from 8.30 am Wednesday until 9.00 am Friday; and
(ii)in week two, from 8.30 am Wednesday until 9.00 am Monday.
(e)during Victorian gazetted school holidays as follows:
(i)commencing 2023, for one half of each term holiday by agreement and failing agreement, the first half; and
(ii)commencing 2023 for one half of the Victorian gazetted long summer school holiday period by agreement and failing agreement the first half in even numbered years and the second half in odd numbered years.
(f)on X’s birthday on a school day for a period of two hours by agreement in the event that the children are not already in the care of the father and failing agreement from 3.30 pm until 5.30 pm and on a non-school day for a period of four hours by agreement and failing agreement, from 2.00 pm until 6.00 pm;
(g)on Y’s birthday on a school day for a period of two hours by agreement in the event that the children are not already in the care of the father and failing agreement from 3.30 pm until 5.30 pm and on a non-school day for a period of four hours by agreement and failing agreement, from 2.00 pm until 6.00 pm;
(h)on the father’s birthday if the children are not already with the father from 9.00 am until 6.00 pm (if a non-school day) or from the conclusion of school until 7.00 pm (if a school-day);
(i)from 9.00 am on the day preceding Father’s Day until the commencement of school or kindergarten (or 9.00 am in the event of a non-school or kindergarten day) in the event the children are not already with the Father on that day;
(j)in each even-numbered year from 12.00 pm 23 December until 5.00 pm 27 December (5 Day Period);
(k)for Easter in 2023 and each odd-numbered year thereafter, with the father from 9.00 am the Thursday prior to Easter until 5.30 pm the Tuesday following Easter;
(l)such further and other times as agreed between the parents in writing.
5.The children’s time with the father be suspended as follows:
(a)on Mother’s Day from 5.00 pm on the Saturday immediately prior to Mother’s Day until the commencement of school or kindergarten (or 9.00 am in the event of a non-school or kindergarten day) in the event that the children are not otherwise in the care of the Mother;
(b)on the mother’s birthday if the children are not already with the mother from 9.00 am to 6.00 pm (if a non-school day) or from the conclusion of school until 7.00 pm (if a school-day);
(c)alternate weekend and mid-week time suspended during the Victorian gazetted school terms 1, 2 and 3 holidays once Y turns three with the time to resume after the holidays as if the holidays had not interrupted such time;
(d)alternate weekend and mid-week time suspended during the Victorian gazetted long summer school holidays commencing 2023 with the time to resume after the holidays as if the holidays had not interrupted such time;
(e)for Easter in 2024 and each even-numbered year thereafter, with the mother from 9.00 am the Thursday prior to Easter until 5.30 pm the Tuesday following Easter;
(f)for the first three (3) days of the Lunar New Year, with the mother to have liberty to travel interstate with the children to visit and spend time with their maternal family;
(g)in each odd numbered year from 12.00 pm 23 December until 5.00 pm 27 December;
(h)such further and other times as agreed between the parties.
6.The mother be at liberty to have the children travel interstate and participate in the family tradition of memorial prayer gatherings for deceased family members on the weekend befalling or following these respective dates from 9.00 am Saturday and return to Melbourne for the commencement of school on Monday 9.00 am, subject to compliance with paragraph 9 of these Orders:
(a)9 July (great-grandmother);
(b)8 September (great-grandfather).
7.Changeover is to occur as agreed between the parties in writing and failing agreement at the children’s kindergarten/school or at B Shopping Centre in Suburb C.
8.The parties be at liberty to have at changeover a support person either attend on their behalf or attend with the parties so long as the children are familiar with the nominated third party.
Travel
9.If either parent intends to take the children on an overseas or interstate holiday, they (“the travelling parent”) shall provide the other parent with:
(a)no less than four (4) weeks written notice, including:
(i)a detailed itinerary of the holiday, including return flights and the general activities they will be undertaking; and
(ii)a proposal for the children’s make-up time that is equal to the time lost with the other parent (if any) as a result of the travel.
10.The maximum time that the children are to travel with the travelling parent on each occasion is for one (1) week during any school term or three (3) weeks during the long summer school holidays, unless otherwise agreed between the parents in writing.
11.In the event of serious illness or death of an interstate or international family member or close friend, the four (4) weeks’ notice will not be applicable in this instance. The travelling parent will provide immediate notice and flight details to the other party, however a detailed itinerary of general activities is not required as to permit immediate travel for the purposes of compassionate visitation or funeral attendances.
12.In the event a party does not consent to the children accompanying the travelling parent during times or events that are not stated within these orders, that party take responsibility of the children’s care to permit the travelling parent to travel.
13.The parties do all things necessary to ensure that the children each have valid Australian passports.
Education
14.The father and the mother both be permitted to attend all school, kindergarten or day care activities including concerts, plays, excursions, parent teacher interviews and the like, normally attended by parents.
15.Each parent give all necessary consents and authorities to enable the other parent to obtain information concerning the children’s education, health care and extracurricular activities.
16.Each parent be authorised to have access to any school, kindergarten or extracurricular apps that parents would ordinarily access.
17.Unless otherwise agreed in writing, the parents do all acts and things to enrol and facilitate the childrens attendance at school as follows:
(a)X be enrolled for schooling at D School in Suburb E for the commencement of Prep in January 2023 until the conclusion of Year 6;
(b)Y be enrolled for schooling at D School in Suburb E for the commencement of Prep in January 2025 until the conclusion of Year 6.
Medical
18.Each parent shall immediately inform the other of any serious illness or injury sustained by the children or either of them whilst in their care and further provide any particulars of any treatment received by the children or either of them together with the name and address of the treatment provider and/or location at which the child is a patient.
19.Both parents be at liberty to attend the hospital or medical centre in the event the children are admitted for treatment and follow any medical advice given by any medical professional.
20.Both parents notify the other of any medical appointments made for the children.
21.The parents be permitted to engage with any medical or support services engaged for the benefit of the children.
22.Both parents do all acts and things to continue to engage Y with the F Clinic to monitor any allergy issues until such time as the service deems it no longer necessary.
23.Both parents do all acts and things to engage X in any and all necessary appointments through the National Disability Insurance Scheme (“NDIS”) including allied health and other medical/service providers for his therapeutic benefit until such time as the service deems it no longer necessary.
24.Both parents ensure the children follow all allied health and medical professional recommendations and treatments, and have the children continue to engage with such professionals on a regular basis until it is recommended in writing that their engagement is no longer necessary.
25.For any reason should there be a cancellation made to the children’s allied health appointments, the parties notify each other and notify the professionals of the cancellation or rescheduling at least 48 hours before the intended appointment as to prevent incurring cancellation fees (i.e. full costs of travel and 60 minute session).
General specific issues
26.Without admitting the necessity for same, the parents be restrained, by themselves or their agents, from:
(a)denigrating the other parent or any member of the other parent’s family or household in the presence or hearing of the children or allowing any other person to do so;
(b)inflicting physical punishment on the children or permitting anyone else to do so.
27.Both parents be restrained from changing the children’s place of residence to a place more than 15km from the Melbourne suburb of Suburb C unless by agreement between the parents or order of the Court.
28.Each party shall notify the other within 48 hours of any change to their mobile telephone number and provide the other parent with their updated contact details.
29.Wherever practicable, the father and the mother communicate via the parenting communication app known as ‘Talking Parents’ as to any issues affecting the best interests of the children and the parties be responsible for their own costs in respect of instalment and registration of the application, if any.
30.The parties be at liberty to provide a copy of these Orders to any day care, kindergarten, school, medical or support services engaged with the children.
31.The parties be at liberty to provide a copy of these orders together with the reports of Dr H and Dr J to any mental health practitioner from whom they receive care.
32.The mother authorise her treating mental health practitioner to provide information to the father in relation to the mother’s mental health in the event that her mental health declines.
33.Pursuant to s 68Q of the Family Law Act 1975 (Cth) the Court declares that, to the extent that any of these Orders conflict with an extant Family Violence Intervention Order, then the Family Violence Intervention Order is invalid but only to the extent of the conflict.
34.The father pay spousal maintenance to the mother in the sum of $200 per week for a period of 12 months from the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhelan & Yazhu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J:
Introduction
The applicant is the father and the respondent is the mother of the children X born in 2016 and Y born in 2020 (“the children”).
The substantive issue in dispute at the trial was whether the children should be permitted to relocate to New South Wales with the mother or whether orders should be made requiring the children to remain in Victoria.
At the conclusion of evidence, the mother abandoned her position to relocate to New South Wales. The parties were able to substantially reach agreement about parenting orders and interim parenting consent orders were made in chambers on 18 August 2022. The orders provide for both parents to have equal shared parental responsibility and for the children’s time with the father to progress until the commencement of a shared care arrangement as from 10 July 2023.
All parties agree final parenting orders should be made in accordance with the interim parenting orders, contemporaneously with the orders determining the remaining issues in dispute.
Issues in Dispute
The following issues remained in dispute:
(a)whether the configuration of the parental shared care of the children should change to week about commencing Term 1 2025, or whether the configuration should remain as implemented from 10 July 2023;
(b)should the children attend K School, as proposed by the mother or D School as proposed by the father;
(c)the mother seeks an order for the father to pay spousal maintenance of $350 per week until the youngest child, Y commences primary school in 2025, whereas the father seeks dismissal of her application.
Synopsis
I have determined:
(a)configuration of the shared care arrangement for the children should remain in accordance with the arrangements applicable from 10 July 2023;
(b)unless otherwise agreed by the parents in writing:
(i)X shall attend D School in Suburb E for the commencement of Prep in January 2023 until the conclusion of Year 6;
(ii)Y shall attend D School in Suburb E for the commencement of Prep in January 2025 until the conclusion of Year 6;
(c)the father pay spousal maintenance to the mother of $200 per week for a period of 12 months from the date of these orders.
Background and relevant procedural history
The applicant father is aged 34 years and the respondent mother is aged 30 years.
The parties’ commenced their relationship in 2014, whilst they were both living in Sydney. The father was employed at L Company as a professional and the mother was studying.
The parties’ commenced cohabitation in 2015, married in 2016 and separated on a final basis in April 2020. They were divorced on 2 August 2021.
The parties’ eldest child, X was born in 2016 and their second child, Y was born in 2020. After the birth of X the mother was diagnosed with Post-Natal Depression and Premenstrual Dysphoric Disorder. X has some developmental delays and is eligible for NDIS assistance.
The parties’ purchased the former matrimonial home in Suburb C in late 2017, prior to relocating to Melbourne and moving into the property in 2018.
The parties’ separated on 28 April 2020 when the father was removed from the home by police who issued a Family Violence Safety Notice and subsequently applied for an intervention order. On 30 April 2020, the father consented to an interim Intervention Order without admission.
For a period in mid-2020, the mother was admitted as an inpatient of a hospital unit and was diagnosed with Post-Natal Depression and an Adjustment Disorder.
On 2 June 2020, the father filed an Initiating Application in the then Federal Circuit Court of Australia seeking parenting orders, which he subsequently amended to seek property orders. On 9 June 2020, the mother filed a Response seeking orders to relocate the children to Sydney.
On 10 August 2020, a judge of the court made interim orders by consent providing for the children to live with the mother and spend time with the father supervised by a contact service.
The father met his current partner, Ms M (“Ms M”) in late 2020. They commenced a relationship in early 2021, prior to Ms M moving in with the father and falling pregnant in mid-2021. The father disclosed to the mother through his lawyers that he had re-partnered with Ms M in late 2021. Their son, N was born in 2022.
On 19 November 2020, final property orders were made by consent providing for the father to pay the mother $40,500 and for the father to retain the former matrimonial home encumbered, together with superannuation splitting orders.
On 30 November 2020, orders were made for the appointment of an independent children’s lawyer (“ICL”), the parents to have equal shared parental responsibility for the children, the children to spend graduated time with the father progressing from supervised to unsupervised and for the mother to be restrained from residing more than 50km from Suburb C.
On 27 January 2021, orders were made transferring the matter to this Court and further interim consent orders were made restraining the mother from removing the children from Victoria.
On 29 March 2021, orders were made by consent for X to spend overnight time with the father on Thursday during week one and from Friday until Sunday during week two, with Y to spend day time periods only with the father on the same days he spends time with X.
In mid-2021, Victoria Police withdrew all investigations of the father, prior to the mother filing a police statement in late 2021 alleging family violence against X in the father’s household.
On 22 September 2021, I made trial directions and listed the matter for trial commencing on 15 March 2022 and requested the parties to attend upon Dr J for an updated family report.
On 31 December 2021, the children spent 17 consecutive nights with the father because the mother contracted Covid-19.
On 22 February 2022, the mother amended her Response to seek an order for spousal maintenance.
On 9 March 2022, orders were made for the father to obtain legal representation pursuant to the cross-examination scheme and listing the trial in August 2022.
Documents relied upon by the parties
The father relied on the following documents:
(a)Amended Initiating Application filed on 18 July 2022;
(b)Two affidavits of the father both filed on 18 July 2022;
(c)Financial Statement of the father filed on 18 July 2022;
(d)Affidavit of Ms M (Ms M) filed on 7 February 2022;
(e)Outline of Case document filed on 5 August 2022;
(f)Documents tendered by counsel, including documents produced pursuant to subpoenae.
The mother relied on the following documents:
(a)Amended Response to Initiating Application filed on 2 August 2022;
(b)Two affidavits of mother both filed on 2 August 2022;
(c)Financial Statement of the mother filed on 22 February 2022;
(d)Outline of Case document filed on 7 August 2022;
(e)Documents tendered by counsel, including documents produced pursuant to subpoenae.
The ICL relied on the following documents:
(a)Affidavits of Dr J filed on 27 November 2020 and 5 August 2022;
(b)Affidavit of Dr H filed on 29 October 2020;
(c)Section 69ZW Response from DFFH dated 28 August 2020;
(d)Outline of Case document filed on 5 August 2022;
(e)Documents tendered by counsel, including documents produced pursuant to subpoenae.
The following documents were tendered during the course of the trial:
Exhibit Number Description H-1 Final Intervention Order dated 28 October 2020 H-2 Letter from Dr O from P Clinic to Dr Q dated 11 June 2020 H-3 Annexure MY-1 of the mother’s affidavit filed 10 November 2020 (Pages 12–27) (Psychiatric Report by Dr R, Psychiatrist) H-4 Mother’s employment contract with S Services dated mid-2021 M-1 Recordings of the mother and child dated 20, 26, 30 October 2021 ICL-1 Section 69ZW Report dated 28 August 2020 ICL-2 Email dated 10 August 2022 of update from DFFH J-1 Fees for K School (tendered by consent of all parties) Evidence
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
Credibility of Witnesses
Father’s witnesses
The father and his current wife, Ms M gave evidence and were cross-examined by both counsel for the mother and ICL.
The father gave evidence in a very respectful and direct manner. He impressed me as an honest and responsive witness who demonstrated considerable insight into the children’s relationship with their parents and extended family, and their emotional and physical needs. His evidence was considered, informed, measured and child focused. He did not attempt to embellish his answers to assist his case. I accept his evidence as unequivocally truthful. Where his evidence differs from the mother, I prefer his evidence, for the reasons referred to in my discussion of the mother and her evidence.
The father’s wife, Ms M also impressed as a direct and truthful witness, who was responsive and forthright to questions asked. She was not cross-examined in any great detail and I accept her evidence. Her observations about the children's behaviour in the father’s household and her resounding willingness to have the father’s children live in their home demonstrated her close relationship with the children.
Mother's witnesses
The mother gave evidence and was cross-examined by both counsel for the father and the ICL. Many of the mother’s answers to questions were crafted to present herself in a favourable manner to promote her desired outcome. For example, the mother alleged that she was the victim of family violence perpetrated by the father, which she reported to many authorities. Dr H’s report casts doubt on the veracity and characterisation of past events as family violence and he considered she may have unintentionally recast her experiences as abusive, when they may not have been. Further, she alleged she father’s partner Ms M, assaulted X whilst in the care of the father. The mother recorded herself questioning X on multiple occasions over a period of ten days (Exhibit M-1) when she alleged the child had made disclosures. The recordings demonstrated she had asked the child numerous leading questions about the allegedly abusive behaviour of the father’s partner and that the child had clearly not made any credible disclosures. Where her evidence differs from the father, I prefer his evidence.
The Independent Children’s Lawyers witnesses
Dr J gave evidence and was cross-examined by all three counsel. None of the parties required Dr H to give evidence and I accept his evidence.
Dr J conducted two assessments of the family. The first assessment was conducted on 26 October 2020, which resulted in the family report dated 27 November 2020. An updated family report was ordered by me on 22 September 2021 and filed with the Court on 5 August 2022.
Dr J is a Clinical and Forensic Psychologist with extensive experience in conducting family reports and giving evidence in this Court. Dr J in both his two reports and oral evidence demonstrated considerable insight into both parents and the children and the family dynamic and I accept his evidence, which is referred to throughout these reasons.
Statutory Pathway
The legal principles applicable to parenting disputes
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests by reference to the primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence (s 60CC(2A)).
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I have not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.
I now turn to the specific issues in dispute.
The configuration of time the children should spend with each parent
The parenting orders agreed upon by the parents culminate in the children spending equal time with each parent as from 10 July 2023. The time is configured so that the children will spend two nights with the father in the first week of each fortnight and five nights in the second week of each fortnight.
Both the father and the ICL propose the configuration of the children’s time should change to a week-about arrangement, with changeover each Friday, as from Term 1 2025, when Y commences Prep.
The mother proposed the children spend time with the father, as from 10 July 2023 in a fortnightly cycle, in week one from 8.30 am Wednesday until 9.00 am Friday and in week two, from 8.30 am Wednesday until 9.00 am Monday.
Dr J, in his report of February 2022, recommended the children’s time with the father needs to be increased on a progressive basis over the next 18 months and proposed a potential model for a graduated increase of time. In reaching agreement about the progression of the children’s time with their father, the parties had regard to and were guided by the suggestions of Dr J.
The evidence of Dr J regarding whether spend time arrangements should progress to a week-about basis, as proposed by the father and ICL was that whilst week-about would be generally advantageous for children, it is not a panacea for this family’s problems. Benefits include a longer period for each child to settle in with the respective parent, greater certainty particularly for X’s special needs and the added simplicity of fewer changeovers. Both counsel for the father and ICL adopted Dr J’s comments in their submissions.
The mother opposed a week-about arrangement because it would potentially impact her capacity to work and attend appointments for herself and X. Although the mother is not currently employed, she proposes to re-enter the workplace as soon as she is able to do so. The mother contended her prospects of securing and maintaining employment would improve if she had the flexibility to work each week, when the children would be cared for by the father, rather than having the fulltime care of the children for one week each fortnight.
The submissions of counsel did not specifically address the s 60CC(3) statutory considerations, but generally took into account ss 60CC(3)(b), (d), (e), (f), (g) and (i).
Having considered Dr J’s evidence and the proposals of all parties, I consider the arrangements proposed by the mother to be the appropriate configuration for shared care of the children. I do so for the following reasons:
(a)a reduction in changeovers is not a paramount factor as there are orders that the children reside within 15km from Suburb C and the majority of changeovers will be at the children’s school/kinder, which are in close proximity;
(b)the mother will have greater ease attending appointments with the children, and in particular X, if she is able to schedule appointments in both weeks;
(c)the mother’s future employment may benefit from having availability and flexibility to work from Wednesday to Friday each week, as opposed to having limited ability to work every second week;
(d)the children would otherwise be required to adjust to a new routine, in circumstances where it may cause X’s anxiety to increase;
(e)the proposed routine is simple for the children to understand they spend each Wednesday and Thursday night overnight with their father, and weekends alternate between the parents; and
(f)a week away from each parent may be too long for a 5 year old child, as Y will be when equal time commences and may be too long for X, when his developmental needs are taken into account.
I intend to make orders accordingly.
The primary school each child should attend
The mother proposes the children attend K School, a religious school whereas the father proposes the children attend D School, a local public school.
Both parents agreed X will remain at his current T School until the end of December 2022 and continue to receive assistance from NDIS service providers and Y will remain at U Day Care and school until January 2025.
There was a deficit of evidence relevant to the children’s primary education. In her trial affidavit the mother referred to the children’s enrolment in a catholic school in NSW, which was not ultimately relevant because of her concession to remain in Victoria. In her trial affidavit she proposed the children attend a private religious school, including during secondary school. This was not pursued by her when it became apparent neither party could afford the expensive fees at the school. Her preferred position during the trial was for the children to attend K School.
The mother submitted the children should attend the religious school as she is deeply religious and wants the children to have the benefit of a religious education. Prior to their marriage the father signed a document, agreeing the children should be raised as religious (Annexure MY-07 to her trial affidavit). He also consented to X’s baptism, but did not know about, nor consent to Y’s baptism. He did not pursue any particular objection to Y’s baptism.
During his final submission, counsel for the mother, in accordance with the mother’s oral evidence, submitted the school fees for K School would be approximately $520 per annum per child. That was because the family would be eligible for a bursary based on the mother’s current income. If the family was not eligible for a bursary, the fees payable would increase to a maximum of $2,600 per annum. The mother proposed the father contribute to towards the school fees.
The father’s evidence during cross-examination was that he had no real objection to the children attending a religious school, but his main concern was the capacity for the parents to pay school fees.
Because of the lack of evidence about the fees at K School, I requested counsel to provide some evidence about the scale of fees. A screenshot of fees from the school website, was tendered as Exhibit J-1. The document states the fees for the 2022 school year are $2,060 per annum, plus a student and stationary levy ranging from $420 to $735 depending on the year level. X commences Prep next year and if the current fees were to remain the same, the fees payable would be $2,480 excluding uniforms, books and any extra costs. The fees payable will obviously increase when Y commences primary school in 2025.
The father did not provide any assurance that he had the financial capacity or indeed willingness to contribute to the cost of religious school tuition. I discuss the father’s income in greater detail later in these reasons. However, in his most recent Financial Statement filed in July 2022, he deposed to weekly income of $4,631 and weekly expenditure totalling $4,473.
The mother’s current income would not enable her to pay the fees at K School. Although I have some confidence the mother will eventually return to work and obtain income, there is no current evidence of quantum of her future income and her capacity to pay the school fees nor specific evidence about the family’s eligibility for a bursary in the future.
Most appropriately, counsel for the ICL did not advocate a strong view about whether the children attend a catholic or local state primary school when both schools are prima facie satisfactory for the children. He referred to Dr J’s evidence about the benefits of children attending a local primary school, which include a sense of community in attending a school close to a child’s home.
The applicable legal principles for schooling disputes were discussed by Austin J in In Bilz & Breugelman [2013] FamCA 578, at [81]–[107] and the path of reasoning to determine school issues was referred to by the Full Court of the Family Court in Stewart & Stewart [2017] FamCAFC 67 at [53]–[56].
In this matter, orders were made by consent for the children to live with their mother and spend time with the father gradually increasing until equal time is achieved in July 2023 and for the children reside within 15km of Suburb C. K School is located in Suburb E and D School is located in Suburb V. Both suburbs fall within the 15 km radius of Suburb C and there is no issue both schools will be within a reasonable proximity to the homes of both parents and the children will benefit from schooling and extracurricular activities within their local community.
The mother was particularly focused on the religious aspects and from her perspective, benefits the children, from attending a religious school. Irrespective of whether the children attend a religious school, I have no doubt the mother will ensure the children have a deeply religious upbringing and will regularly attend Sunday school and church.
As to the financial aspects of the school dispute, counsel for the mother was unable to persuade me that the mother would have the financial capacity to meet the fees at K School. I am concerned about the effect on the children if they commenced primary school there and due to the mother’s financial constraints, were unable to continue and would have to change schools. Because of X’s need for continuality, predictability and stability, a change of primary school may have particularly adverse consequences for him.
The children are far too young and immature to express any view about their choice of primary school. The submissions of each of the counsel very broadly addressed the statutory considerations in ss 60CC(3)(f), (g), (i) and (m) of the Act. No other consideration was submitted by either the parties or the Independent Children’s Lawyer to be relevant to the resolution of the dispute.
After considering and balancing the submissions of counsel, I conclude the children should attend D School, because of the proximity of the school to the residences of both parents and to ensure continuity and stability of the children’s primary education, without risk of disruption because of financial pressures.
SPOUSAL MAINTENANCE
On 9 June 2020, the mother filed a Response to Application for Final Orders. In her Response, she sought to be excused from particularising final orders and sought interim orders for the father to pay to her spousal maintenance “of $200 per week, commencing 14 days from the date of this order until 31 December 2038”. Final property orders were made by consent on 19 November 2020, which did not include an order for spousal maintenance. The orders included a notation, “pursuant to s 81 of the [Act] these Orders shall, as far as practicable, finalise all financial matters between the parties and avoid further proceedings between them”. The parties were divorced on 2 August 2021.
On 22 February 2022, the mother filed an Application in a Proceeding seeking spousal maintenance, which for reasons unexplained was not sealed and was not listed for a discrete hearing. On 2 August 2022, the mother filed an Amended Response to Initiating Application where she also sought spousal maintenance.
At the commencement of the trial, the mother sought payment of spousal maintenance until the children attained 18 years, of $600 per week in the event she remained in Victoria and $300 per week if she were permitted to relocate the children to New South Wales.
During the trial, the mother amended the quantum so that she sought an order for spousal maintenance of $350 per week, payable until Y commences primary school in 2025.
The father sought dismissal of the mother’s spousal maintenance application.
Applicable Legal Principles
Section 72(1) of the Act provides:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
In In the marriage of Bevan (1995) FLC 92-600, the Full Court set out what it said was required for the Court to make an order for spousal maintenance at [81982] to [81983] as follows:
(l) a threshold finding under s 72;
(2) consideration of s 74 and s 75(2);
(3)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
(4)discretion exercised in accordance with the provisions of s 74, with “reasonableness in the circumstances'’ as the guiding principle.
In Brown & Brown (2007) FLC 93-316 at [161], the Full Court referred to the applicable principles:
•The word “adequately” is not to be determined according to any fixed or absolute standard.
•The idea that “adequate” means a subsistence level has been firmly rejected.
•Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
•In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
•It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
•However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
I will firstly address the threshold issue, namely whether the mother is unable to support herself adequately.
In support of her application, the mother relied on her Financial Statement filed 22 February 2022 and her affidavit filed 2 August 2022.
Her Financial Statement disclosed an average weekly income of $1,236, comprising wages of $118, parenting payment of $431, family tax benefit of $128 and child support of $559. Her expenditure at item 33 of the document was $1,834 per week, with fixed expenditure of $558 per week and other expenditure of $1,276 per week, as detailed in part N.
The mother was cross-examined about her expenditure in Part N, and in particular the amounts claimed for utility bills, expenses garden and lawn mowing, books, hairdressing and toiletries, car repairs and gifts. I accept the mother’s explanation for the expenses claimed and do not consider the expenses in Part N of her Financial Statement to be excessive. The mother clearly struggles financially.
Counsel for the father put to her she had received a property settlement in late 2020 of $40,000 together with a superannuation split and that was available to her to supplement her living expenses. The mother’s evidence was she had paid in excess of $30,000 in legal fees from that settlement and most of the balance had been spent on living expenses and including securing rental property. I accept her explanation of the disposition of the property settlement.
She was also cross-examined about when she last received employment and her capacity to obtain employment in the future. I accept the mother’s evidence that she has substantial commitments caring for the children and also attending NDIS and other health-related appointments for X and she has been unable to obtain greater employment because of commitments for the children and her mental health issues. It is difficult for the father to suggest that the mother’s mental health issues impact on her capacity to care for the children, to the extent that the children should spend equal time with each parent, without also considering the impact of her mental health issues on her capacity to obtain and sustain employment.
I am satisfied that the mother has met the threshold issue and is unable to support herself adequately from her own resources.
As to his capacity to pay, the father relied on Financial Statement filed 18 July 2022. That document discloses an average weekly income of $4,631 comprising $3,483 salary, $1,148 of benefits received from his employment including $900 of shares and $248 of phone, medical and internet stipend. His weekly expenses at Item 33 are $4,473.58. His oral evidence was that the weekly mortgage payment at item 21 has increased from $500 to $550.
The father was cross-examined about his Financial Statement and in particular the loan of $35,000 which he claimed at item 53 as a loan from the family and the $36,000 of outstanding legal fees owing to his former solicitors. The loan from family members is not documented in writing and is effectively repayable as and when he has the capacity to do so. Annexure MZ-03 to the father’s affidavit regarding spousal maintenance is a copy of the legal fees owing to his former solicitors as at 31 January 2022, which he is paying at the rate of $1,000 per month. I accept his evidence about the two liabilities. The payments to his former lawyers of $345 per week are included at item 29 of his Financial Statement.
At Part E, the father did not disclose any other income earners in his household, although he freely acknowledged he lives with his partner, Ms M. Ms M was cross-examined by counsel for the mother and it transpired she is currently on leave from a position with G Company, where she has been employed for 12 or 13 years. She was in the process of negotiating a redundancy payment with her employer, as her position had recently been made redundant. The negotiations were scheduled to continue a day or so after the conclusion of the hearing. She was unable to give any estimate of the quantum of her likely redundancy payment.
The assets and liabilities of the father include his home which he values at $500,000, and which is mortgaged to the extent of $485,323, $2,000 in a home loan offset account, $136,000 in W Corporation shares, $60,000 tax liability unpaid in previous financial years, a $30,000 Motor Vehicle 1, household contents of $8,000 and superannuation of $95,000.
Counsel for the mother submitted that the relevant s 75(2) factors to be taken into account are:
(a)the mother’s reduced earning capacity due to her mental health;
(b)notwithstanding the increase of the children’s time with their father, the mother would continue to be responsible for the children’s medical and other appointments, reducing her ability to work;
(c)the mother is not in a position to be working in a full-time or part-time capacity and is not able to meet the needs of the children including rent, groceries and living expenses;
(d)Ms M was employed by G Company for 12 or 13 years in Customer Service, and was eligible for a redundancy package;
(e)there was no evidence about when Ms M would be return to work in the future or about the legitimacy of the father’s asserted loan from family members;
(f)the mother has substantiated the father has a $150 per week surplus and therefore has capacity to pay spousal maintenance.
Counsel for the father submitted the application should be dismissed for the following reasons:
(a)as at January 2022, the father owed $41,500 to his previous solicitors and is currently on a payment plan paying $1,000 per month;
(b)Part N of the father’s Financial Statement was not challenged;
(c)the mother identifies in her Financial Statement of a $600 weekly shortfall and the father proposes to receiving a $150 surplus in weekly income, however that surplus would be reduced due to mortgage repayment increases;
(d)the father is currently paying $3,700 per annum for the child’s T School fees.
After consideration of the evidence and the submissions of both counsel, I prefer and accept the submissions of counsel for the mother. It is clear from the mother’s Financial Statement there is a deficiency in the mother’s income to meet her reasonable expenses and that she has scant financial resources or assets. I also accept there are limitations to her immediately re-joining the workforce because of her mental health issues and commitments to caring for the children. She has effectively been the primary carer of the children since their birth and it may well take some time for her to obtain employment. Her recent attempts to obtain income as a playgroup facilitator pale into insignificance when balanced with the income earnt by the father. I appreciate the father has re-partnered and has a new baby, but he continues to earn a relatively good income and on his own Financial Statement has a surplus of income over expenditure. It is also reasonable to anticipate his partner will be in a position to contribute to the support of their joint household because of her redundancy and or re-joining the workforce.
Thus, the mother has established that she is unable to support herself adequately from her own resources and that the father has a modest capacity to pay spousal maintenance to the mother. I consider the quantum should be $200 per week and the payment should be for a limited period of 12 months. That amount will supplement the mother’s household income to a modest level. That is sufficient time for the mother to endeavour to obtain employment which will meaningfully contribute to the support of her household during the period the children will transition to an equal care arrangement in July 2023.
I intend to make orders accordingly.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 14 September 2022
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