Freedom Law

Overseas divorce – property settlement time limit does not apply

Overseas divorce – property settlement time limit does not apply

CONCLUSIONS

  1. In my view, the legislation is clear. “Divorce order” relates to a divorce obtained pursuant to the Family Law Act. The statutory limitation in relation to property settlement applies only to parties to a divorce order.
  2. No part of the legislation, including the definition of “matrimonial cause”, would lead to the conclusion that the term “divorce order” should apply to a divorce obtained overseas by order or otherwise. The term “divorce order” is used consistently throughout the legislation – pertaining to Australian divorces exclusively.
  3. It may seem to be an anomaly, that foreign divorces recognised under Australian law do not have the same temporal limitations imposed where the parties seek a property settlement in this country. There is no doubt that a divorce may be obtained in another country with different administration and different limitation periods. The Act clearly has provided a limitation period only for Australian divorces.
  4. For these reasons it cannot be accepted that, on an ordinary construction of the relevant sections of the Act, an application for property settlement in circumstances where there is a foreign divorce recognised pursuant to s 104, requires leave after the expiration of the time provided by s 44(3).
  5. The appeal should be dismissed.

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Was Leave Pursuant to s 44(3) Required?

  1. His Honour’s findings with respect to s 44(3) are premised on leave pursuant to that section being required where parties are divorced by the law of a country other than Australia (at [185]-[193]). No ground of appeal challenges, in terms, that premise, nor do any submissions made by the wife or on her behalf.
  2. His Honour’s premise was based on one view – possibly the then predominant view – of then existing authority. Subsequently, this Court has decided in Anderson & McIntosh (2013) FLC 93-568, after considering existing authority and careful arguments in respect of the provisions of the Act and their meaning, that leave pursuant to s 44(3) is not required in respect of a divorce obtained overseas.
  3. On an appeal by way of rehearing, this Court is bound to apply the law as at the date of the hearing of the appeal (see, Coulton v Holcombe [1986] HCA 33(1986) 162 CLR 1 at 7). This appeal was heard on 2 December 2013 and the decision in Anderson was handed down on 13 December 2013. However, the effect of the decision in that case is to determine the meaning of the terms of the Act applicable on, relevantly, 2 December 2013 (when the appeal was heard), and on 27 July 2011 when his Honour heard the proceedings; 13 March 2012 when his Honour delivered judgment; and, indeed, on 26 May 2000 when the wife filed her application for settlement of property in the Family Court.
  4. As a result, his Honour was in error in determining that the wife required leave pursuant to s 44(3) of the Act to institute her proceedings for settlement of property.
  5. Although no ground of appeal asserts, in terms, an error of law in this respect and although no submissions were made to that effect, “if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it” (Warren v Coombes [1979] HCA 9(1979) 142 CLR 531 at 553, per Gibbs ACJ, Jacob and Murphy JJ).
  6. As a result, the appeal, insofar as it challenges the alternative order made by his Honour in respect of leave pursuant to s 44(3), must succeed.

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Siblings reunited to live with their father

Siblings reunited – although siblings living separately to each other at time of final hearing, their best interests lay in living together with their father who was better able to regulate his own and the childrens’ emotions compared to the mother

Exton & Fahey 

 

  1. The Family Consultant was strongly supportive of the children being reunited in their father’s care. She described the two boys as having been an absolute pleasure to meet and that it had been a mutually enjoyable interview. She explained that she had not seen the different side of either child described by the parents.
  2. The Family Consultant was very firm to say that the boys should be together, that they were physically affectionate with each other and showed a really good connection on each occasion she saw them. Significantly she said that in her view each child felt a burden of guilt about their separation and that there could be long lasting repercussions if they were separated.
  3. The Family Consultant stressed the significance of the sibling relationship, “They won’t have shared experience; they will grow apart. If one parent can meet their needs, then they should be together”.
  4. The mother cross-examined Ms R. The Family Consultant stood firm about the level of time with the mother she considered appropriate in the event that the younger child went to live with his father. She challenged the mother on her proposition that it would not be fair for the child if he spent as little as one weekend per term with her.
  5. The Family Consultant explained that none of what had happened to the children had been fair for them but they had a great need to lead a settled and predictable life. She also explained to the mother that in her professional opinion the mother’s behaviour provoked the older child to behave in a certain way; that his father’s behaviour did not provoke the same response.
  6. The Family Consultant also explained that she had heard of evidence given in the trial that concerned the mother, that the mother struggled physically with the older child. In the view of the Family Consultant there needs to be someone present during all periods of time for the time to be a benefit.
  7. Having read the report of the speech therapist for the younger child the Family Consultant agreed with the mother that the child was doing very well. She went on to say that if he was doing well then he would be likely to continue to do well in the care of his father.
  8. The Family Consultant also identified that the mother treated the two children very differently and that the boys were aware of the differential treatment and that posed difficulties for their relationship. That evidence resonated with the evidence of the mother and the maternal grandfather that the younger child was a good child with no behavioural problems and that the older child was a naughty and difficult child.
  9. Finally, the Family Consultant explained to the mother that it was her inability to regulate her own emotions that was the issue, “You are responsible for your behaviour and controlling your emotions. If you can’t control yourself and help them regulate their emotions then it’s a problem”. At that time the mother appeared to understand that the Family Consultant was not directing her recommendations to fairness between adults but the fundamental needs of the children and which of the parents could meet those needs.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

  1. For the past 15 months the children have been separated from each other. The orders providing for the children to spend time with each other and the parent with whom they were not living have required the children to do extensive travel, more importantly they have not been complied with by the mother in more than one respect. The mother failed to return the older child after the 2015/2016 school holiday period. The mother did not comply with the orders for her time with the older child to be supervised by her father. The mother has not ensured that the father spends time with the younger child.
  2. The change for the children which will most stabilise their situation is for them to be re-united with each other. The evidence strongly supports a finding that the father at this stage of their lives is better equipped to meet their needs and on that basis an order will be made that the younger child B moves to live in the father’s household.
  3. Although the younger child has made good progress especially with his speech and has enjoyed the greater calm of the mother’s household, he has asked his father about living with him and his brother. To maintain the status quo, of separation of the children, would inevitably lead to further applications, most particularly if the mother chose to move to a new location with her partner.

Making decisions for your children when you separate

Making decisions for your children when you separate

Sometimes parents feel that it is best for children to make up their own minds about where they want to live. Young children are not usually ready for this responsibility as they are not generally mature enough to make this important decision. Having to make such a decision places a heavy burden on them and having to choose between their parents can lead them to feel guilty about the parent they have not chosen. Usually the best decisions about where and how the children live are those made together by the parents. However, parents should consider the feelings of their children and be willing to listen to them. Children should not be required to express a view when to do so would mean reprisal from a disappointed parent. Parents normally know their children’s needs and are usually in a better position than anyone else to make decisions about their children’s future. If parents are unable to make these decisions themselves because of conflict, family and child mediators and counsellors can help them to negotiate with each other. Mediators and counsellors can be contacted through the Family Court of Australia Mediation Service and through groups such as Relationships Australia, Centacare and Anglicare. They may assist parents who wish their children to be involved in decisions and they can help parents assess the needs of their children. If an agreement is still not possible at the talks, it then becomes necessary for the Family Court judges to make a decision. The judges will make decisions which they believe are in your children’s best interests, whether you agree with those decision or not. The Family Law Act guides judges as to what facts they need to consider when determining what is in a child’s best interests.

Messy separations – how to avoid hurting the children

Messy separations – how to avoid hurting the children

Things to avoid

Children are usually very loyal and trusting so it is important to look at the ways in which you behave with them to make sure you are not abusing their loyalty and trust. Set out here are some of the subtle ways in which parents can take advantage of their children in the midst of a messy separation.

‘Messenger’

– using your children as messengers between the two of you teaches children that adults cannot talk honestly or directly to each other.

‘I Spy’

– asking a child to report on the other parent is destructive – it is using a child for your own ends.

‘Your father is a slob’ ‘Your mother is a fool’

– anger between parents has a destructive effect on children.

‘Disneyland daddy’ ‘Mummy Santa’

– when visits are used just to give the child a good time, or outings and gifts take the place of normal parenting.

‘I still love him but he doesn’t love me’ ‘I want to keep the house for the kids but she wants to sell it’

– this puts pressure on your children to take sides.

‘You can go if you like … but we are going on a picnic’

– don’t set up competing activities, it spoils children’s pleasure in being with either parent.

Books for children dealing with separation and divorce

Books for children dealing with separation and divorce

  • ‘It’s Just Different Now’
    Espie, Linda
    Spectrum Publications, Richmond 1999
    – For children aged 3-7 years
  • ‘Mom’s House, Dad’s House: A Complete Guide for Parents who are Separated, Divorced or Remarried’
    Ricci, Isolina
    Fireside Books/Simon & Schuster,
    New York, 1997
  • ‘Two of Everything’
    Cole, Babette
    Jonathan Cape, London, 1997
    – For children aged 5-12 years
  • ‘Dad’s Place : A Guide for Fathers After Divorce’
    Burrett, Jill
    Angus & Robertson, Sydney NSW 1996
  • ‘I have Two Dads’
    Wilson, Lorraine
    Illustrated by Chantal Stewart. CIS Cardigan
    Street, Carlton, Victoria 1995
    For children
  • ‘The Suitcase Kid’
    Wilson, Jacqueline
    Illustrated by Nick Sharatt. Yearling
    Books/Doubleday, London, 1993
    For children
  • ‘To and Fro Children – A Guide to Successful Parenting after Divorce’
    Burrett, Jill
    Allen and Unwin North Sydney 1991
  • ‘At Daddy’s on Saturdays’
    Girard, Linda Walvoorol
    Albert Whitman 1987
  • ‘Break-up’
    Padoan, G. – Milan, Italy
    Happy Books 1987
  • ‘Dinosaurs Divorce’
    Brown, L and Brown M
    Little, Brown 1986
    – For children up to 10 years
  • ‘Jason Goes to Stay with Dad’
    Liddicut, J. – Richmond, Vic
    Ossie Books, 1986
  • ‘When Jason’s Dad Moved Away’
    Liddicut, J. – Richmond, Vic
    Ossie Books, 1986
  • ‘Daddy Doesn’t Live Here Anymore’
    Boesehold, B. – New York
    Western Publishing Co. Inc., 1985
  • ‘Megan’s Book of Divorce’
    Jong, E – London
    Granada, 1985
  • ‘What Kind of Family is This?’
    Sevling, B – New York
    Western Publishing Co. Inc., 1985
  • ‘High Pavement Blues’
    Ashley, B. – Harmondsworth & Middlesex
    Puffin Books, 1984
  • ‘Mom and Dad Don’t Live Together Anymore’
    Stinson, Kathy
    Annick Press, 1984
  • ‘Breaking Up’
    Willkott, F. – London
    William Collins Sons & Co. Ltd, 1983
  • ‘What am I Doing in a Step-Family?’
    Berman, C. – Melbourne, Vic
    Angus & Robertson, 1983
  • ‘Bring to a Boil and Separate’
    Hadley Irwin – New York
    Atheneum, 1981
  • ‘I Have Two Homes’
    Althea – Cambridge
    Dinosaur Publications, Ltd, 1980
  • ‘My Mom and Dad are Getting a Divorce’
    Bienenfeld, F. – St Paul, MN
    E.M.C. Corp., 1980
  • ‘So Mum and Dad have Separated’
    Messenger, D.R. – Melbourne, Vic
    Listen and Learn Productions, 1980
  • ‘Divorce Can Happen to the Nicest People’
    Mayle, P. – Melbourne, Vic
    Sun Books, 1979
  • ‘Divorce is a Grown Up Problem’
    Sinberg, J. – New York
    Avon, 1978
  • ‘It’s not the End of the World’
    Blune, J – London
    (Piccolo) Pan Books, 1972

Look for these and others in your local library or book store

Relocation order sought by Father that Mother and children move from Queensland where they have been living for 12 months to New South Wales

Relocation order sought by Father that Mother and children move from Queensland where they have been living for 12 months to New South Wales

Relocation 

  1. On any view of the evidence the fact is that the father has had virtually no relationship with Y and his relationship with X has been significantly strained due to the distance between he and the child post separation.
  2. The father himself created some distance by moving to the (omitted) in February 2016, shortly after separation.
  3. The mother has added to that distance by relocation to Queensland.
  1. In assessing the evidence at this interim stage, I am satisfied that it is more probable than not that the mother and the children have been living in Queensland since relocation in June 2016.
  2. These are interim proceedings. It is clearly the mother’s intention that she continue to reside in Queensland since her relocation. That will no doubt be her application on a final basis.
  3. If I caused the children to be returned to New South Wales this will cause a disruption to their life. A life that on my findings has been settled for approximately 12 months in Queensland following relocation. This has the potential to be disadvantageous to the children.
  4. Of course a move to New South Wales might place them closer to their father. The disadvantage of the move must be weighed against any advantage to be gained in having a meaningful relationship with the father.
  5. It is not the father’s application that the children should reside with him in the (omitted) area. It is his application that the children reside with the mother in the (omitted) area.
  6. I would therefore need to make a coercive order as to where the mother was to live.
  7. In Oswald & Karrington[5] the Full Court said that the court’s power to make a coercive order should be exercised only in rare and extreme circumstances.
  8. The Full Court in Sampson & Hartnett [6] said that there is an imperative for the court to explore and consider alternative to restricting freedom of movement particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary care giver undertaking that role in a place not of that parents choosing.
  9. There is no evidence before me to suggest that the father does not have freedom of movement. That is, the father does not say he cannot afford to travel to Queensland nor does he say that work commitments prevent him from travelling to Queensland.
  10. He will need to establish a relationship with Y and reconnect with X. This will require shorter visits and perhaps more frequent visits however I am not persuaded that based on the evidence currently before me that the father cannot or would not travel to Queensland for the benefit of his children.
  11. Furthermore, I am not persuaded that there are rare or extreme factors that warrant me exercising my discretion to make a coercive order. There has been too much water under the bridge. These children and their mother have resided in Queensland for approximately 12 months.
  12. In those circumstances, weighing the two competing proposals with regards to the disadvantages to the children, I am satisfied that it would be more disadvantageous to remove them from Queensland at this time.

Relocation cases are determined according to children’s best interests

Relocation cases are determined according to children’s best interests

Relocation cases:

  1. Parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act”) with a view to determining what orders, if any, are in the best interests of the children.
  2. In Zahawi & Rayne,[3] the Full Court noted:

47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:

…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.

48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.

  1. In short, there are no special tests that apply to such cases and each case must therefore be determined on its own facts. While the Full Court noted that, as a result of the consequences of a proposed relocation, the burdens rendered on the parties may be more acute, it is not the case that the party desiring to relocate needs to establish “compelling reasons” for the relocation.[4]

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Brisbane/ Gold Coast/ Sunshine Coast / Townsville

Family Contact Service evidence assists father gaining more time with children

FAMILY CONTACT SERVICE EVIDENCE ASSISTS FATHER IN GAINING MORE TIME WITH CHILDREN

REASONS FOR JUDGMENT

(delivered ex tempore)

  1. Orders were made by consent on 21 September 2017, which include, by order 6, that the father spend each Wednesday from 4:00pm to 6:00pm and each Saturday from 8:00am to 10:00am in supervised time with the children at a Family Contact Service for the first six occasions that he spends that time with them.
  2. Order 7(c) of those orders provided that the father obtain and meet the costs of a report from the professional supervisor at the Family Contact Service at the conclusion of the six supervised occasions of contact and that provided that the report does not raise any significant concerns about the time spent, the requirement for supervision cease.
  3. The Court has been provided with a report from the Family Contact Service, Ms J, and that gives a detailed account of the interaction between the father and the children on Saturday 30 September, Saturday 7 October, Saturday 13 October, Wednesday 18 October and Saturday 21 October 2017.
  4. Without quoting from it, on my reading of that account from the Family Contact Service, the time that has been spent between the father and the children has gone extremely well. There is a sense of joyousness about the interaction, the children seeming relaxed and comfortable with the father and the father is behaving appropriately with the children. There is nothing in that report indicating that there has been any behaviour which would suggest the children have not enjoyed their time with their father.
  5. This is contrary to what is said by the mother in paragraph [21] of her affidavit affirmed 1 November 2017, wherein she states:
    The children have been upset and difficult to settle after their time with the applicant. They are having real difficulty with the time with their father at present.
  6. Having regard to the fact that Ms J is an experienced supervisor, she has provided a detailed and comprehensive account of the time that the children have spent with the father and that she is non-partisan, I accept her account of how the children spend time with the father. There is no evidence that the children are having real difficulty with their time with the father at present. Notwithstanding this, the mother has not allowed the father to have time on, I understand, two occasions since the supervised time finished.
  7. The issue is what occurs between now and the time for obtaining a family report. Orders have been made for the parties to attend an appointment for that purpose on 31 January 2018.
  8. In my view, there should be some variation of the orders that were made on 21 September 2017. There have been competing proposals in relation to the time that the father spends with the children:
    1. the father proposed that the Saturday time for the next four weeks be extended from 10:00am to 6:00pm and the Wednesday arrangement remain in place. After four weeks, he proposed that the time be extended from Friday evening to Sunday evening each alternative weekend and the Wednesday arrangements remain in place.
    2. the mother proposed increasing the Saturday time by two hours so instead of time being from 8:00am to 10:00am it run from 8:00am to 12:00pm and the Wednesday remain the same.
  9. The orders that I have made are in effect a compromise between the competing positions and provide an opportunity for the father to spend meaningful time with his children but on a more limited basis than that which he proposed. Given that there are clearly ongoing tensions between the parents regarding arrangements for the children, in my view the graduated approach which is reflected in the orders is one that is likely to lead to less tension. In view of the extremely positive account of the time that the father spent with the children in a supervised setting, in my view the children will benefit from spending a longer period of time with their father.
  10. The mother filed an affidavit sworn 1 November 2017 which detailed what she regarded as breaches of an intervention order which occurred in the period up to 9 September 2017. These include allegations of telephone calls made by the father to the mother and instances where the mother saw the father drive past and then pause and look into the window of the business operated by the mother in (omitted) Street.
  11. The affidavit also sets out a translated Facebook message from the father’s new partner to the mother which was highly derogatory of the mother (particularly her appearance). That text message was sent in May 2017. The message was plainly inappropriate and was accepted as such by counsel for the father and I expect that no further similar communications will be made by the father’s new partner. Text messages between the mother and the father which were tendered to the court indicate that they both have a poor approach to communicating with one another.
  12. The allegations made by the mother in her most recent affidavit relate to events which are alleged to have occurred prior to the orders made on 21 September 2017. There is no evidence of any allegation of further incidents since those orders were made. I do not believe the allegations of family violence are such to affect the father’s capacity to parent or to put the children at risk whilst in his care.
  13. The mother made allegations of drug use in her affidavit, in particular marijuana use. The allegations are vague and I note that the mother has not sought orders that the father submit to drug tests. The evidence does not establish on an interim basis that the children are at risk because of the father’s alleged drug use.
  14. In my view, these orders are appropriate and are in the best interests of the children. They were formulated by the Court following discussion with the party’s representatives in open Court. I have made these orders having regard to the principles stated in Goode v Goode [2006] FamCAFC 1346(2006) 36 Fam LR 422 at [82].

Children, parental responsibility and the Family Law Act

Children: When parents of a child under 18 separate, they both have parental responsibility for the child, subject to any court order. Shared parental responsibility differs from equal time.

Both parents also have a duty to support the child financially.

This department administers the Family Law Act 1975, handles international parent–child legal matters, and has policy responsibility for post-separation services.

Best interests of the child

The Family Law Act 1975 focuses on the rights of the child and the responsibilities that each parent has towards their child, rather than on parental rights. The Act aims to ensure that children can enjoy a meaningful relationship with each of their parents, and are protected from harm.

Equal shared parental responsibility

Under the Family Law Act 1975 there is a presumption that both parents will have an equal parental responsibility—that is, they will both have a role in making decisions about major long-term issues such as where a child goes to school or major health issues.

The presumption does not apply if the parent engaged in abuse of the child or family violence.

The presumption also does not apply if it is not in the best interests of the child.

Shared parental responsibility is not the same as equal time. Parents will spend equal time with a child only where:

    • they can agree to this arrangement

or

  • a court finds that equal time is in the best interests of the child and is the most suitable arrangement.

Family dispute resolution

The Family Law Act 1975 requires separating families who have a dispute about the child to make a genuine effort to sort it out through family dispute resolution.

The Act also requires that they take part in family dispute resolution before attending court unless one of the exceptions applies, such as family violence, child abuse or urgency.

Children’s contact services

Children’s contact services help children of separated parents to have contact with their other parent and family members when there are concerns about safety.

Support for children after separation

Community-based organisations provide Supporting Children after Separation Program (SCaSP) services throughout Australia. SCaSP services assist children from separating families to deal with issues arising from the breakdown in their parents’ relationship and to be able to participate in decisions that impact them.

For more information on family dispute resolution, children’s contact services and support for the child after separation, visit the Family Relationships Advice Line website or call 1800 050 321.

Child support

Australia’s child support scheme allows separated parents to make payments for the financial support of their child.

For more information, visit the Department of Human Services website.

Parentage testing laboratories

A list of accredited parentage testing laboratories is available on our accredited testing labs and nominated reporters page.

International family law and children

For information about international law and the child, visit our International family law and children page.​

 Sunshine Coast

Child Support variation refused despite Payee’s withholding of children

Child Support variation refused despite Payee’s withholding of children

REASONS FOR JUDGMENT

  1. The Applicant, whom has previously been assessed to pay child support in the amount of about $2,126.00 per month, as from 15 January 2007, seeks an order specifying that the annual rate of child support payable by him in respect of the children B (born in 2001) and C (born in 2004) be varied to “Nil” from 18 September 2014 onward.
  2. His application for this variation to the child support assessment relies on the fact that, on 18 September 2014, a Recovery Order was made, by which the children were to live with him. Despite this, and as a result of the Respondent’s deliberate actions, the Recovery Order was only executed on 25 July 2015.
  3. That is, whilst the terms of the Recovery Order provided that the Applicant was to have 100 per cent of the care of the children, the Respondent in fact retained 100 per cent of their care, in breach of the terms of the Recovery Order, until 25 July 2015.
  4. The Applicant’s evidence is to the effect that, despite the terms of the Recovery Order, he was required to continue to pay child support in the amount assessed until an Order, made on 6 May 2015, stayed the operation and implementation of the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) and also stayed the execution and collection of monies payable by him by virtue of the child support assessment pertaining to the children pending the hearing and final determination of his application for discharge and/or variation of the assessment.

Brief overview of relevant legislative provisions and their operation

  1. The parents of children have the primary duty to maintain those children.[1] The principal object of the Child Support (Assessment) Act 1989 (Cth) is to ensure that children receive a proper level of financial support from their parents.[2] Particular objects of the Act include ensuring that:
    1. the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support;[3] and
    2. the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children;[4] and
    1. 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;[5] and
    1. children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them.[6]
  2. The relevant legislative provisions require that, in determining the annual rate of child support payable for a child (using the “basic formula”), the Registrar must:
    1. determine each parent’s child support income;[7] and then
    2. determine the parents’ combined child support income;[8] and then
    1. determine each parent’s income percentage;[9] and then
    1. determine each parent’s percentage of care for the child;[10] and then
    2. determine each parent’s cost percentage for the child;[11] and then
    3. determine each parent’s child support percentage for the child;[12] and then
    4. determine the costs of the child under s 55G and s 55H of the Child Support (Assessment) Act 1989(Cth); and then
    5. if a parent has a positive child support percentage: determine the annual rate of child support payable by the parent for the child for the day by using the formula: “Child support percentage x costs of the child”.
  3. Whilst it is probably obvious, for the purposes of the assessment of the amount of child support payable by a parent, the “percentage of care” is the mechanism used to take into account the amount of time that parent is responsible for providing care for the child.
  4. The Registrar usually determines the “percentage of care” based on the actual care that each parent has of the child.[13] However, where a parent is not complying with, relevantly, a Court order and an interim care decision is in effect, the Registrar may determine not to use the actual care a parent has of a child to determine the care percentage but, instead, and for an interim period, may make a determination of the percentage of care based on, relevantly, the terms of the Court order rather than on the actual care.[14] It seems to me to be incumbent on the parent seeking that the Registrar use the terms of the order, rather than the ‘actual care’, to take reasonable steps to have the terms of the order complied with.
  5. Once determined, a parent’s “percentage of care” is used to determine their “cost percentage” for the child and is also described by the use of one of five different terms prescribed within the Act. Relevantly, these include “regular care” (being the term used to describe a percentage of care of 14 per cent to less than 35 per cent), “primary care” (being the term used to describe a percentage of care of more than 65 per cent to 85 per cent) and “above primary care” (being the term used to describe a percentage of care of more than 86 per cent to 100 per cent).
  6. The relevance of these is that a parent who has a care percentage of less than 35 per cent for a child will not receive child support for that child; a parent who has more than 65 per cent care for a child will not be assessed to pay child support and a parent who has more than 86 per cent of care for a child is not required to pay child support.
  7. The terms of the September 2014 Recovery Order were such that, if implemented as intended when the Order was made, it is more likely than not that the Respondent’s “percentage of care” would have been less than 35 per cent and the Applicant’s “percentage of care” would have been no less than that which constitutes “primary care”.
  8. I think it also relevant to note that the provisions of the Child Support (Assessment) Act 1989 (Cth) enable the Registrar[15] to make an interim care determination in cases where there is a dispute between parties in relation to the care of a child. Such dispute exists where a care arrangement for the child (which relevantly includes a parenting order within the meaning of s 64B of the Family Law Act 1975 (Cth)) is in place and there is a departure from the terms of the same by one of the parties.
  9. If, for example, a parent is, without their consent, prevented from having a child in their care in accordance with the care arrangement (that is, a parenting order) and that parent takes reasonable steps to have the care arrangement complied with (for example, filing an application in Court seeking that the order be enforced), the Registrar may, for an interim period (being a period of up to 14 weeks or, in special circumstances,[16] 26 weeks), determine that parent’s care for the child on the basis of the care arrangement (relevantly, the terms of the parenting order) rather than actual care provided by that parent.
  10. Such determination may well mean that child support will be assessed in accordance with the care arrangement rather than in accordance with the manner in which the child is actually being cared for but, at the conclusion of the interim period, the parent’s care percentage will, from the day after the end of the interim period, again be determined according to that parent’s actual care of the child.

Conclusions

  1. Whilst the Applicant’s position in advancing the application is understandable in all the circumstances of this particular case, I have reached the conclusion that the evidence does not establish those matters about which, pursuant to s 117(1) of the Child Support (Assessment) Act 1989 (Cth), I must be satisfied in order to grant the relief sought by the Applicant.
  2. It is clear that, from 18 September 2014 until 25 July 2015, the children were completely in the Respondent’s care and that she was the parent responsible for providing all of the ongoing daily care for them. That she provided this care in breach of the terms of the Recovery Order does not mean that it was not provided.
  3. Additionally, the fact that the Respondent was 100 per cent responsible for the children’s care during this period means that the Applicant was not called upon to meet their expenses in the way in which he would have been if the Respondent had complied with the terms of the Recovery Order and caused the children to live with him thereafter.
  4. For these short reasons, I refuse the Applicant’s application for an order varying the annual rate of child support payable by him from 18 September 2014 onward.

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