How Not to Give Disclosure in a Trial

Family Court of Australia at Hobart

FILE NUMBER: SYC 8557 of 2015

Mr Pearson

Applicant

And

Ms Pearson

Respondent

 

REASONS FOR JUDGMENT

INTRODUCTION

5.                  On 30 December 2015 the husband filed an application for property orders and sought interim orders that pursuant to s 79A of the Family Law Act 1975 (Cth) (‘the Act’) the Consent Orders made at Suburb B Local Court be set aside.  The application went on to claim orders for property and costs.  In addition, he sought interim orders in relation to the wife dealing with property.

6.                  This proceeding came before me in a call-over on 20 March 2019 and it was listed for the hearing of the Application under s 79A of the Act on 29 April 2019.  Directions were made for filing affidavits. 

7.                  On 29 and 30 April 2019 the hearing proceeded.  However, the husband’s case had changed somewhat and it was adjourned for further hearing on 24 and 27 May 2019.  Leave was given to the legal practitioners for the wife to issue some subpoenas and obtain documents, through the husband, from Centrelink.

8.                  Subsequently, I ordered that a copy of the Transcript of the April 2019 proceedings to be made available to the solicitors for each of the parties.  This was done primarily because after the adjournment of the April 2019 hearing I became unwell and was unable to return to work until mid-October 2019.  The hearing of this matter was administratively adjourned and continued on 17 and 18 October 2019 at Sydney.

9.                  Part of the material sought by the solicitors for the wife were documents from Centrelink.  Those documents were provided to the husband’s solicitors by Centrelink in a letter dated 8 July 2019.[1]  The documents produced by Centrelink were voluminous and contained about six hundred pages.  Perversely, the husband and his legal advisors did not provide a copy of those documents to the solicitors for the wife until the morning of the re-commencement of hearing on 17 October 2019. 

10.             This was at best unfortunate and at worst an attempt to prevent a proper and timely examination and consideration of those relevant and important documents.  It caused a waste of about an hour or so of hearing time and could have caused further delay or even an adjournment of the hearing.  It may have given rise to a serious forensic disadvantage to the wife and her legal advisors.

11.             The Court was not proffered any adequate reason why these documents were not provided promptly to the wife’s solicitors.  An excuse was issued that the documents were to be produced at court and this was the first occasion; that assertion was a nonsense.  The wife’s solicitors were actively seeking that material and the husband’s solicitor responded with mute dismissal.

12.             The husband and those advising him have an obligation for ongoing disclosure. As recently as January 2019 the Full Court in Bulow & Bulow [2019] FamCAFC 3 said:-

80.       … The obligation of disclosure in financial proceedings is ongoing, including up to the point when orders are made.   Equally importantly, as authority has consistently emphasised, disclosure must be both “full and frank”.  

13.             This must apply to the production of documents.

14. This type of delay and obfuscation in production of documents to another party is unacceptable.  It brings the legal profession into disrepute and has the capacity to undermine the judicial process.  Disclosure is not a game to be played by parties and their legal practitioners.  All parties and members of the legal profession are reminded that in family law property proceedings financial disclosure and production of relevant documents are a matter of ‘show and tell’ not ‘hide and seek’.

Posted in: Derek Legal Blog at 02 March 20

Child Support - Whether There Was a Change to the Likely Pattern of Care

Cowell and Child Support Registrar (Child support) [2019] AATA 262 (7 January 2019)

DIVISION:                                           Social Services & Child Support Division

REVIEW NUMBER:                         2018/PC015018

APPLICANT:                                     Mr Cowell

OTHER PARTIES:                           Child Support Registrar

TRIBUNAL:                                       Member W Budiselik

DECISION DATE:                             07 January 2019

 

DECISION:

The decision under review is affirmed.

 

REASONS FOR DECISION

BACKGROUND

1. Mr Cowell, the applicant, and [Ms A] (the mother) are the parents of [Child 1] (the child born in 2001). From 22 June 2016, the Department of Human Services – Child Support (the Department) recorded the mother had 92% of the child’s care and the father had 8% of her care.
2. On 19 March 2018, the father advised the Department the child was no longer in either parents’ care from 16 February 2018. On 8 May 2018, a Departmental officer decided to reject the applicant’s request that the child’s care percentages should be changed.
3. On 14 May 2018, the applicant lodged an objection to the Department’s decision. On 12 July 2018, an objections officer within the Department decided the mother had 100% of the child’s care and the father had 0% of her care from 16 February 2018, with effect from 19 March 2018.
4. On 12 September 2018, the applicant lodged an application for a review of the Department’s decision with the Administrative Appeals Tribunal (the tribunal). On 7 January 2019, the tribunal conducted a hearing into the application. The applicant participated in the hearing. The mother was invited to be added as a party to the hearing but chose to not be added. Prior to the hearing the Department provided the tribunal and the applicant with a bundle of documents (folios 1–129).

ISSUE

5. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
6. The issues which arise in this case are:

a) Did a child support terminating event take place on 16 February 2018; and, if not,
b) Has there been a change to the care pattern for the child such that the care percentages used in the child support assessment should be revoked; and, if so,
c) The new care percentages which apply and the date from which they take effect.

Issue a): Did a child support terminating event take place on 16 February 2018?

7. Section 74 of the Act provides that if the Registrar becomes aware of a child support terminating event the Registrar must act to take it into account. A child support terminating event is defined in section 12 of the Act.
8. In this case the applicant advised the Department neither he nor the child’s mother were caring for the child from 16 February 2018. If this is the case and no other eligible carer has been assessed for child support in relation to the child, then a child support terminating event has occurred.
9. The way the Department interprets and applies child support legislation is set out in the online Child Support Guide (the Guide). The tribunal is not bound by law to apply the Department’s policy as set out in the Guide, but provided the policy is consistent with the legislation, it must have regard to it and in the ordinary course, follow it (Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) unless there is a cogent reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
10. Subchapter 2.2.1 of the Guide deals with the basics of care. Relevantly, it provides:

Determining whether care exists

An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.

In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following (emphasis added) are relevant to the particular case:

• To what extent the person has control of the child, including having overall responsibility for the child and making:
  • major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
  • arrangements for others to meet the needs of the child (delegated care).
• To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
• To what extent the person pays for the costs of meeting the needs of the child.
• To what extent the person otherwise provides financial support for the child.
• To what extent the child provides for his or her own needs or has those needs met from another source.
• To what extent the child is financially independent or financially supported from another source.

Older children living away from home

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant (emphasis added). In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

11. The applicant said the mother did not comply with the terms of a 2008 Court Order in that she did not provide him with specified information about his child. The applicant said the care arrangements set out in the Court Order were not followed. The applicant said that over time his child had succumbed to her mother’s influence and that the child now had no contact with him.
12. The applicant explained that the Department had failed to provide him with the evidence the mother had provided to it and upon which it has based its care percentage decision. He said he had received the relevant information when he lodged his appeal to the tribunal. He said had the information been provided earlier the need for a tribunal hearing might have been avoided.
13. The applicant argued the mother had not been held to account for her decisions to pursue a romantic relationship some 700 kilometres away and to leave the children with their maternal grandmother.
14. The applicant said he was disappointed the Department had accepted the mother’s evidence about the financial support she provided to the child without further inquiry. The mother had provided to the Department evidence of bank transactions that she claimed proved her ongoing support for the child. The applicant identified:

• An entry of $40.95 for [fast food] seemed excessive. That is, he believed the entry referred to expenditure for more than the child;
• Transfers of cash to ‘[name]’ (that was meaningless but which the Department seemed to have accepted);
• The inclusion of petrol costs as if the totality of the expenditure related to the child.

15. The applicant further argued that the level of expenditure set out in the papers far exceeded the mother’s financial capacity. With respect to this issue the tribunal advised the applicant that the mother’s financial capacity was not an issue it could deal with in the context of a care decision.
16. The tribunal reviewed the financial information provided by the mother to the Department. It accepted the comments made by the applicant that some of the line entries were difficult to interpret or meaningless without additional explanation. However, it concluded the evidence demonstrated the mother provided substantial ongoing financial support to the child.
17. The applicant argued that the mother had abandoned the child by moving away, and on the other hand argued she was over-involved and overly influential with the child via her periodic contact, text messages and social media.
18. The applicant appreciated some of the issues he wished canvassed were beyond the remit of the tribunal generally (for example, the quality of the mother’s parenting), or were not able to be dealt with in the context of a care percentage or care termination decision (for example, the mother’s financial resources). The tribunal advised the father that if he believed the child support assessment was unfair he had the option of seeking a departure determination (referred to as a change of assessment). The applicant said he would consider whether he would take further action or let the matters rest as the child’s assessment ceased in about 6 months.
19. The tribunal is satisfied in this case a terminating event for child support has not occurred on 16 February 2018.

Issues b) and c): Has there been a change to the pattern of care for the child such that the care percentages used in the child support assessment should be revoked, and, if so, from when should the new care percentages apply?

20. As a child support terminating event did not occur, the relevant provisions in this case are sections 50 and 54H of the Act which provide that if there is a change to a parent’s percentage of care the Registrar may revoke the determination and replace it with a percentage of care determination that reflects the actual care that the person will have, or is likely to have, in the care period. Subsection 54H(3) of the Act provides that when the Registrar is notified of a change in the care pattern for a child, if the date of notification is more than 28 days after the change occurred, the date of revocation is the day prior to the date the Registrar was notified.
21. It is not in contention that the applicant provides 0% of the child’s care or that the Registrar was made aware this was the actual level of care provided by the applicant on 19 March 2018.
22. At the time the case was assessed by the Department, the tribunal is satisfied the mother was providing the child with substantial financial support. It is also satisfied she is in regular contact with the child and that they have a strong emotional attachment. The tribunal accepts caring for a child who is an older teenager does not mean cohabitation is a necessary prerequisite to provide care. The Guide confirms this is the case and that the arrangements for care for older children are likely to vary. The tribunal concluded the mother should be attributed with 100% of the child’s care.
23. Consequently, when subsection 54H(3) of the Act is applied, the existing care percentage is revoked on 18 March 2018 and the new care determination has effect from 19 March 2018.

DECISION

The decision under review is affirmed.

Posted in: Derek Legal Blog at 25 February 20

Application for Collection of Ongoing Child Support and Arrears

Green and Sampson (Child support) [2019] AATA 378 (10 January 2019)

DIVISION:                                           Social Services & Child Support Division

REVIEW NUMBER:                         2018/SC015249

APPLICANT:                                     Ms Green

OTHER PARTIES:                           Child Support Registrar

                                                              Mr Sampson

TRIBUNAL:                                       Member J Thomson

DECISION DATE:                             10 January 2019

 

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that an arrears amount of $1,559.05 was collectable for the period 6 May 2018 to 5 August 2018.

 

REASONS FOR DECISION

BACKGROUND

1.    Ms Green and Mr Sampson are the parents of [Child 1], born 2000, and [Child 2], born 2003 (the children).

2.    Ms Green seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 16 December 2018. This decision allowed Mr Sampson's objection to the Department’s earlier decision of 8 August 2018 to accept Ms Green’s application for collection of child support payable by Mr Sampson from 6 August 2018 together with arrears of child support for the period 6 May 2018 to 5 August 2018 (the arrears period) in the amount of $1,559.05.

3.    The objections officer decided that a payment of $3,000 made by Mr Sampson to Ms Green’s [Bank 1] account on 13 May 2018 was a payment of child support made within the arrears period, and, consequently, there was no unpaid child support for the arrears period.

4.    The Tribunal heard the matter on 10 January 2019. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Department. Both parents had copies of these papers with them at hearing, and the Department’s documentation was admitted into evidence and marked Exhibit 1.

ISSUES

5.    The issue which arises in this case is whether the payment of $3,000 made by Mr Sampson on 13 May 2018 to Ms Green’s [Bank 1] account was a child support payment made within the arrears period for the purposes of child support.

CONSIDERATION

6.    In reaching its decision, the Tribunal has considered the affirmed evidence of both parents at hearing, and the documentation contained in Exhibit 1.

7.    The statutory provisions relevant to this review are contained in sections 39 and 39A of the Child Support (Registration and Collection) Act 1988 (the Act). Section 39(1) provides that if a registered liability is not enforceable under this Act because of an election made under section 38A of the Act, (in this case, an election by Ms Green to have the liability no longer enforced under this Act), the payee (Ms Green) may apply to the Registrar for the liability to again become enforceable under this Act, that is, collected by the Department.

8.    Section 39A(4) of the Act provides that if a payee ( Ms Green) makes an application under section39(1) of the Act, the payee may also apply to the Registrar, in the manner specified by the Registrar, for any unpaid amounts payable under the liability in relation to a specified period to be treated as arrears amounts for the purposes of this section.

9.    Subparagraph (5) of section 39A provides that if the specified period does not exceed three months, the Registrar must grant the payee’s application. In this case, the Department accepted Ms Green’s application on 6 August 2018 to have Mr Sampson’s child support liability enforced/collected by the Department together with arrears of child support payments for the three months preceding Ms Green’s application (the arrears period referred to above), which the Department has calculated to amount to $1,559.05.

10. On 8 August 2018, Mr Sampson objected to the Department’s decision to collect child support for the arrears period, claiming that during that period, on 13 May 2018, he had paid an amount of $3,000 to Ms Green’s nominated [Bank 1] account, which he contended should be credited against the child support arrears of $1,559.05 the Department sought to recover for the arrears period.

11. The objections officer allowed Mr Sampson’s objection, deciding that the payment of $3,000 made by him on 13 May 2018 was a payment of child support within the arrears period, and that there were no arrears of child support unpaid in that period.

12. The Act, by implication, requires that a payment made by a liable payer to a payee be made for child support purposes, that is, a payment made to the payee in satisfaction of a child support assessment made by the Department, and accepted as such by the payee.

13. Ms Green’s evidence at hearing was that when [Child 1]’s [sports] team was invited to travel to [Country 1] in 2018 to participate in a [sports] tournament to be held over a one-month period, for which [Child 1] was required to pay a total cost of approximately $10,000 to his team’s events coordinator, Ms Green suggested to [Child 1] that he contact Mr Sampson to request his financial assistance in funding his trip. She said [Child 1] did this via text message to Mr Sampson, in response to which she said [Child 1] informed her that Mr Sampson had agreed to contribute the sum of $3,000.

14.  She was unable to provide a copy of [Child 1]’s text massage to Mr Sampson as it had been deleted from the mobile phone from which he sent the message.

15   Ms Green’s evidence was that she provided [Child 1] with details of her bank account to which Mr Sampson could deposit his $3,000 contribution to [Child 1]’s costs for travelling to [Country 1] for the tournament.

16. In response to questioning by the Tribunal as to any discussions she had with Mr Sampson regarding the payment of his contribution to the tournament costs, she said that as she and Mr Sampson were not on speaking terms at that time or since, there was no discussion between them regarding the circumstances in which he agreed with [Child 1] to make a $3,000 contribution, and that her knowledge and information regarding Mr Sampson’s agreement to make a contribution came from [Child 1].

17. She said she became aware Mr Sampson had deposited his $3,000 contribution to the tournament costs to her [Bank 1] account when she noticed that amount had been credited to her bank account on 13 May 2018. She said she forwarded this amount to [Child 1]’s [sports] team authorities in part payment of [Child 1]’s costs for the trip to [Country 1]. She gave evidence that she had made arrangements with [Child 1]’s [sports] team management to pay off the balance of the costs of his trip to [Country 1] for the tournament from her own funds. She denied there was any agreement with Mr Sampson that his contribution to the cost of [Child 1]’s trip to [Country 1] would be accepted by her as a payment in lieu of child support.

18. Mr Sampson’s evidence was that he received the request for financial assistance for [Child 1]’s trip to [Country 1] for the [sports] tournament from [Child 1] via Ms Green’s mobile telephone, which included details of Ms Green’s [Bank 1] account to which his contribution was to be paid.

 19. He also acknowledged that he had agreed to assist [Child 1] with funding for his trip to [Country 1] for the [sports] tournament by contributing the sum of $3,000, and that as soon as he was able to raise those funds, he deposited that amount to Ms Green’s nominated bank account on 13 May 2018, categorising the deposit as “Transfer to [Bank 1] A/c [Bank 1] App [Country 1] Trip”, as appears from the payment advice document at pages 36 and 45 of Exhibit 1.

20.  Mr Sampson also acknowledged in his evidence to the Tribunal that there was no discussion or agreement between him and Ms Green that his contribution of $3,000 to [Child 1]’s trip to [Country 1] would be treated as a payment in lieu of child support. He said he had been informed by officers at the Department that the payment could be considered as a child support payment because it related to a school sporting event. However, he acknowledged that his payment to Ms Green’s [Bank 1] account was expressly for the purpose of defraying the costs of [Child 1]’s [sports] team’s trip to [Country 1], and not child support.

21.  Mr Sampson did not challenge the quantification of the arrears calculated by the Department at $1,559.05 at hearing.

22. The Tribunal finds that the evidence is that Mr Sampson’s payment of $3,000 to Ms Green’s [Bank 1] account on 13 May 2018 was expressly his contribution to [Child 1]’s costs for his trip to [Country 1] for his team’s participation in a [sports] tournament in that country, and not a payment for child support purposes. As such, it cannot be regarded as a child support payment made within the arears period.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that an arrears amount of $1,559.05 was collectable for the period 6 May 2018 to 5 August 2018.

Posted in: Derek Legal Blog at 19 February 20

Joint Practice Direction 1 of 2020 - Core Principles in the Case Management of Family Law Matters

A. This Joint Practice Direction applies to all family law applications filed in the Family Court of Australia and the Federal Circuit Court of Australia (“the Courts”), and where applicable, to appeals in family law.
B. This Practice Direction sets out the ten core principles that underpin the exercise of the family law jurisdiction of the Courts. All steps taken in proceedings before the Courts, including commencement of proceedings, should follow these principles.
C. This Practice Direction takes effect from the date it is issued and, to the extent practicable, applies to all family law applications whether filed before, or after, the date of issuing.

Statement of Core Principles

Risk

1. The prioritisation of the safety of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate handling of issues of risk, including allegations of family violence, are essential elements of all case management.

Parties,’ lawyers’ and the Courts’ obligations and overarching purpose

2. The overarching purpose to be achieved is to ensure the just, safe, efficient and timely resolution of matters at a cost to the parties that is reasonable and proportionate in all the circumstances of the case, having regard to the significant impact of family law disputes on children and families. 

Efficient and effective use of resources

3. The Courts’ judicial, registrar and family consultant resources are to be allocated and used efficiently to achieve the overarching purpose in the context of ensuring the appropriate handling of risks wherever they are identified as issues in proceedings.

Approach to case management

4. Effective case management of all cases relies on:

a. a consistent approach to the case management of like-cases;
b. early triaging of matters to an appropriate case pathway, including assessment of risk;
c. the use of both internal and external Alternative Dispute Resolution (ADR), including private mediation, family dispute resolution, conciliation conferences and arbitration in property disputes for as many appropriate cases as possible.

Importance of ADR

5. The Courts encourage the use of appropriate dispute resolution procedures. Before commencing an action, parties are expected to make a genuine attempt to resolve their dispute, complying with the requirements and obligations of section 60I of the Family Law Act (Cth), the pre-action procedures in Schedule 1 to the Family Law Rules 2004 and rule 1.03 of the Federal Circuit Court Rules 2001 as applicable.  Subject to an exception applying, the Court must not hear an application for parenting orders unless a section 60I certificate has been filed. After commencing an action, parties are expected to:

a. be proactive in identifying the appropriate time, and the appropriate way, in which they can participate in ADR, either by agreement or by court order; and
b. Be prepared to consider reasonable offers of settlement at any stage of the proceedings. Failure to do so may have cost consequences.

Costs consequences for failure to comply with orders

6. Non-compliance with orders of the Court and the Rules of Court may attract costs consequences, including, if relevant, the possibility of costs being awarded personally against lawyers in accordance with the Family Law Act 1975 (Cth) and the Rules of Court.

Lawyers’ obligations about costs

7. Parties and their lawyers are expected to take a sensible and pragmatic approach to litigation, and to incur costs only as are fair, reasonable and proportionate to the issues that are genuinely in dispute. Parties and their lawyers are expected to engage in cost budgeting, and regularly inform their clients and the Court of the actual costs they have incurred and are likely to incur (see Part 19.2 of the Family Law Rules 2004).

Identifying and narrowing issues in dispute

8. Issues in the case are to be narrowed to those issues genuinely in dispute. In particular:

a. all parties are required to make frank disclosure to assist the Court in the determination of the dispute or the parties in the resolution of the dispute;
b. applications should only be brought before the court if they are reasonably justified on the material available;
c. it is expected that parties will negotiate both prior to, and at court, in order to narrow the issues in dispute before having the matter heard;
d. when appropriate, a single expert or an assessor should be engaged to assist the parties and the Court to resolve disputes; and
e. costs consequences may flow if parties seek to reopen issues already resolved or unreasonably agitate issues.

Preparation for hearings

9. Parties and their lawyers are to be familiar with the specific issues in the case and prepared for court events and the final hearing in a timely manner. Parties must provide the Court with a considered and informed estimate of the expected hearing time, the number of witnesses, and the specific issues to be decided.

Efficient and timely disposition of Cases

10. The Courts will act effectively and efficiently in achieving the prompt and fair disposition of pending matters, with judgments being delivered as soon as reasonably practicable after the receipt of the final submissions. Where permitted by legislation, short form reasons may be utilised in appropriate cases to facilitate the expeditious delivery of judgments.

Posted in: Derek Legal Blog at 12 February 20

How the Court Assesses the Best Interests of the Child

The Law

Best Interests of the Child

97.          Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children.  Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):

“1.          The objects of this Part are to ensure that the best interests of children are met by:

(a)          ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)          protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)           ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)          ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2.            The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)          children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)          children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)           parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)          parents should agree about the future parenting of their children; and

(e)          children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

98.          Section 60CA of the Act provides that:

“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

99.          To determine what is in the best interests of the child, the court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act.  Each of the matters contained in those subsections, where relevant to the matter before the court, must be considered and assessed in the context of each of the parties’ proposals.  The court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the court is not bound by the parties’ proposals, is in the children’s best interests.

Section 60CC(2)

100.        Section 60CC(2) of the Act sets out the primary considerations that the court must consider when determining what is in the best interests.  They are as follows. 

Section 60CC(2)(a) – The benefit of the child having a meaningful relationship with both of the child’s parents

101.        There is no doubt that Y and X have a close and loving relationship with both of their parents. This was observed by Ms S when she formally observed Y and X with each of their parents.

102.        It is the Father’s evidence that he believes a continuation of the current arrangement which sees Y and X spending time with him when he is not working will ensure that he can continue to be fully engaged in all aspects of Y and X’s lives and will guarantee the continuation of their close and loving relationship.

103.        It is the Mother’s evidence that the lack of consistency and disruption to routine that the current arrangements cause Y and particularly X cannot be seen to be in their best interests. It is her evidence that she believes a consistent parenting arrangement will provide Y and X with certainty and continuity and will not in any way disrupt their relationship with each of their parents, particularly if the Father applies for and obtains a position within the Employer A that will give him a “normal working week”.

Section 60CC(2)(b) – The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

104.        Whilst the Mother accuses the Father of placing his own needs and in particular his wish to be an operational public servant ahead of the needs of Y and X, she is not critical of his actual care of them and makes no allegations that they are at risk in his care.

105.        The Father speaks positively of the Mother as a parent, describing her to Ms S as a good parent.

106.        Whilst it is very apparent that these parties do not like each other and struggle in being able to communicate effectively, Ms S in her family report at paragraph [50] makes the observation that “their protective parenting style is likely to prevent the children from being overexposed to their conflicts in the longer term.”

107.        Ms S does however forewarn that “chronic parental conflict and hostility is well documented in the literature as having a detrimental impact on children’s adjustment post-separation.” Ms S particularly notes that “for children with social and emotional difficulties such as X, interventions to support his development are highly dependent on consistency across parenting arrangements in an environment where conflicts are resolved skilfully.” She states “ongoing parental conflict poses risks to the efficacy of any treatment plan, and in the process, X’s developmental (sic) may be compromised.”

108.        To their credit, and despite their difficulties, these parties are both fully engaged with the treaters who are assisting X. They have been able to jointly attend educative sessions with Ms G and to follow her advice and directions in relation to consistent parenting for him when they have him in their care.

109.        The parties have also worked together to access National Disability Insurance Scheme (“NDIS”) funding for X as well as working closely with his school to ensure he has access to all the supports necessary to facilitate him in being able to fully engage in his education.

110.        It is very apparent from Ms S’s evidence and that of Ms G that this level of cooperation must continue into the future.

Section 60CC(3)

111.        Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interest. 

112.        Each of the matters set out under that section will be considered in turn where applicable in this matter. 

Section 60CC(3)(a) – Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

113.        Because of Y and X’s young ages, their views were quite properly not canvassed or explored by Ms S in any detail.

114.        She notes Y told her that the current arrangements are a bit confusing, “but not so much for me now … it’s harder for X … he doesn’t really understand.”

Section 60CC(3)(b) – The nature of the relationship of the child with: 

(i)  each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child)

115.        As noted, Y and X have a very good relationship with both of their parents.

116.        Ms S observes the Mother to have been Y and X’s primary carer and was therefore not at all surprised when the Mother reported some difficulties with X acting out with her that were not reported by the Father. Ms S explained that X would be more likely to display that behaviour with his mother because he has the confidence in their relationship to at times act out.

117.        The maternal grandmother has been actively involved in Y and X’s lives since their birth and continues in that role by supporting her daughter in looking after them on a very regular basis.

118.        Similarly, the Father reports his mother being involved in Y and X’s care and of them having a close and loving relationship with her.

Section 60CC(3)(c) – The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child;

(iii) to communicate with the child

119.        The parties’ evidence differs considerably on the extent of the Father’s involvement with the care of Y and X whilst the parties were together.

120.        The Mother describes the Father as not being supportive of her and of the children during the relationship and of him being more committed to his work both as a public servant and as a tradesman than being available to care for the children.

121.        The Father disputes the Mother’s evidence that he was not an involved father and describes himself as being available and actively involved in Y and X’s care as his working commitments allowed him to be available to them for six days out of every eight.

122.        It is the Father’s evidence that when X was born he was a very difficult baby and that he would spend considerable time in caring for Y to give the Mother some respite.

123.        What is clear is that since separation the living arrangements that the parties have had in place have ensured that both parents have been actively involved in Y and X’s care.

124.        Further, as noted in this judgment, both parents have actively been involved in the decisions and treatment necessary to assist X given his recent ADHD diagnosis.

Section 60CC(3)(ca) – The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

125.        It is apparent from the parties’ evidence that money and financial matters were a source of conflict and tension between them during the relationship.

126.        The Mother accuses the Father of being very secretive about his finances and of failing to contribute to and meet fully the expenses of herself and the children.

127.        A notation to the interim consent orders made on 9 July 2018 provides for each of the parties to pay one half of any gap medical expenses relating to the children less any rebates to be refunded to the paying parent.

128.        The Mother makes complaint that the Father takes considerable time to reimburse her for X’s medical costs, questioning and delaying payment despite her sending him full documentation.

129.        The Father currently pays child support as assessed by the Child Support Agency in the sum of $230 per week.

Section 60CC(3)(d) – The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

130.        It is the Father’s evidence that if orders were made as proposed by the Mother, it would result in Y and X being cared for by others whilst he was at work. He argues that this cannot be seen to be in their best interests as it prevents him from being able to have the same level of active involvement in their day-to-day care that is afforded to them under the current arrangements.

131.        It is the Mother’s evidence that her proposal would provide Y and X with a level of certainty and consistency that is lacking in the current arrangements but would still ensure the continuation of the loving relationship that they have with both of their parents.

Section 60CC (3)(e) – The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

132.        It is the Father’s evidence that if orders were made as proposed by the Mother and he continues to work as an active public servant, there will be a real practical difficulty for him organising care for Y and X during those periods he is required to work when they are in his care.

133.        Whilst he has a supportive mother, it is the Father’s evidence that she is not able to commit to providing that care on an ongoing and permanent basis to cover his working commitments.

Section 60CC(3)(f) – The capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

134.        Both parties are responsible parents who have at the forefront of their actions the best interests of Y and X.

135.        I am satisfied that both parties can and do provide for the emotional, intellectual and physical needs of Y and X.

Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

136.        As has been noted X has recently been diagnosed with ADHD, albeit it is a little unclear whether that has been a formal diagnosis or one that is pending confirmation from X’s paediatrician Dr D.

137.        Both parties are very much attuned to X’s difficulties and whatever else they are unable to agree on, they are on the same page in terms of recognising his difficulties, accepting the necessity for him to receive ongoing specialist treatment and most importantly are committed to following the advice of his treaters to ensure a consistency of routine and care in both homes.

138.        As was quite properly highlighted by Ms S, Ms G and Dr D, X’s wellbeing is highly dependent on consistent parenting in both parents households. Ms S’s evidence is that parental conflict poses a risk to the efficacy of X’s treatment plan. It will therefore be vitally important that these parents continue to work together to ensure the current consistency of care that they provide X, whatever might be the state of their adult relationship.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

139.        These parties are responsible parents who I am satisfied prioritise Y and X’s needs.

140.        However, some of their tit-for-tat behaviour, particularly in the context of the intervention orders, does not reflect well upon them.

141.        The Father’s actions in having the Mother breached for the intervention order on the basis of the photographs that the Mother briefly posted on Facebook some four months earlier does not reflect well on him at all and can only be seen as a spiteful and unpleasant act.

Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.

Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)            the nature of the order;

(ii)           the circumstances in which the order was made;

(iii)          any evidence admitted in proceedings for the order;

(iv)         any findings made by the court in, or in proceedings for, the   order;

(v)          any other relevant matter.

142.        The circumstances which gave rise to the contested intervention order applications that each of the parties have against the other has been well canvassed in this judgment.

143.        The incidences which led to intervention orders being sought occurred around the time of physical separation when emotions were particularly heightened and when, to quote the Father when speaking to Ms S “(we) both said things we didn’t mean”.

144.        Both parties continue to pursue the interim orders that they have against the other, with the Wife declining an offer from the Father during the final hearing to mutually discontinue their intervention order applications.

145.        In the Father’s discussions with Ms S, the Father expressed the belief that the interim intervention order he had against the Mother has had the desired effect of modifying the Mother’s behaviour around him. The Mother in her vive voce evidence indicated that she believes she has proper grounds to obtain an intervention order against the Father.

146.        The Father’s behaviour in causing the Mother to be charged with breaching the intervention order and the pettiness of that action has already been discussed in this judgment.

147.        There is no doubt that the Mother genuinely finds the Father to be overbearing and aggressive on issues relating to the children. She views the Father’s proposal for time with Y and X as a continuation of this behaviour rather than it being a reflection of his desire to maximise the time that he can spend with them.

148.        The Father in turn finds the Mother to be undermining of his parenting of the children and dismissive of his contributions to their care.

Section 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

149.        In the majority of parenting cases it is in the best interests of children that their parents not be involved in ongoing litigation in relation to their care. This is such a matter.

150.        If the Father were to take up the recommendation of Ms S and obtain a position for a period of up to two years that would enable him to work regular hours and put in place arrangements as proposed by the Mother, there is a real possibility that at the end of that period the Father would return to active duty as a public servant and the question of what the ongoing living arrangements for Y and X would again be live between the parties.

151.        If orders are made in the terms sought by the Father and if the promising start made by X to his education and the progress he is making generally in relation to managing his ADHD was to falter, there is the potential for further litigation if one of the causes of X’s difficulties is identified as being his living arrangements.

152.        If orders were made in the terms sought by the Mother and the Father continues to work as an active public servant there is the potential that he will not be able to always arrange for care of Y and X and that he may call on the Mother to assist in the care of the children when they should otherwise be with him. This would undermine the certainty that the Mother is seeking not only for the children but for herself.

153.        What is apparent from the parties’ evidence is that both parties feel very strongly about the appropriateness of the proposals that they are putting forward. One of them is going to struggle to accept the Court’s decision when it goes against that which they are seeking. It will therefore be vitally important for Y and X that the disappointed party accepts, as far as it is possible to do so, the Court’s decision and does everything within their power to ensure that the arrangements work.

Section 60CC(3)(m) – Any other factor or circumstance that the Court thinks is relevant

154.        As was flagged earlier in this judgment, there is some uncertainty about the Father’s proposal for holiday time with Y and X.

155.        Whilst the Father’s Counsel advised the Court the Father was seeking orders for there to be an equal sharing of the school holidays, the Father seemed more ambivalent about this proposal when giving his vive voce evidence and seemed to indicate Y and X should spend time with him when he has organised his holidays rather than necessarily during the school holidays.

156.        The reality is that the Father is entitled to ten weeks of holiday per year. Despite separating from the Mother 12 months ago, the Father has made no effort to ensure that his holidays, at least in part, coincide with Y and X’s school holidays.

157.        There was a tone to the Father’s evidence that he expects the Mother to accommodate his holidays rather than the school holidays. This would result in the Mother not being able to plan her own holidays with the children or have some degree of certainty around what her working and child care arrangements need to be over the holiday period.

158.        The current interim orders provide that where changeover does not take place at the children’s school or childcare, changeover is to take place at the maternal grandmother’s home in Suburb T and, for this purpose, the Father is at liberty to walk to the front door with the children but to not enter the home.

159.        It is the Father’s evidence that the requirement to effect changeover at the maternal grandmother’s home is unnecessary and requires Y and X to undertake unnecessary travel given that he and the Mother live in relatively close proximity to one another.

160.        The Father is proposing that changeover that does not take place at school should take place at the Mother’s home. He indicated a willingness to agree to an order that he would remain in his car when he dropped Y and X off if that would give the Mother some confidence that this would ensure that there was no unpleasant or unnecessary exchanges between them.

161.        When cross-examined on this issue, the Mother somewhat reluctantly agreed to a proposal of exchange at her home on the basis that the Father stayed in the car, noting that she and the Father had done that at her mother’s house once when her mother had not been there.

162.        In the Amended Initiating Application filed by the Mother on 25 February 2019, she sought orders for the parents to each pay half of annual private health care insurance for Y and X and half of Y and X’s extra-curricular activities.

163.        The Court does not have the jurisdiction to make such orders other than by way of a Departure Order under the Child Support (Assessment) Act 1989 (Cth). There is no application before the Court for a Departure Order and accordingly, the Court cannot make the orders sought by the Mother in this regard.

Posted in: Derek Legal Blog at 10 February 20