Freedom Law

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.

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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Brisbane / Sunshine Coast / Gold Coast / Townsville

Costs of children 2018

Costs of the Children Table 2018

Costs of children: What is the maximum amount of child support payable by:

  • A payer who spends little or no time with the children
  • There are 3 or more children
  • The children range in age
  • In 2018?

Answer – $48, 213 per annum (or $4,017.75 per month), irrespective of the income of the payer over $184,015

Parents’ combined child support income (2.4.4)
Fraction of MTAWE0.511.522.5Costs of children do not increase above this cap
No. of children$0 to $36,803$36,804 to $73,606$73,607 to $110,409$110,410 to $147,212$147,213 to $184,015Income over $184,015
Costs of the children (to be apportioned between parents)
Children aged 0-12 years
1 child17c for each $1$6,257 plus 15c for each $1 over $36,803$11,777 plus 12c for each $1 over $73,606$16,193 plus 10c for each $1 over $110,409$19,873 plus 7c for each $1 over $147,212$22,449
2 children24c for each $1$8,833 plus 23c for each $1 over $36,803$17,298 plus 20c for each $1 over $73,606$24,659 plus 18c for each $1 over $110,409$31,284 plus 10c for each $1 over $147,212$34,964
3 + children27c for each $1$9,937 plus 26c for each $1 over $36,803$19,506 plus 25c for each $1 over $73,606$28,707 plus 24c for each $1 over $110,409$37,540 plus 18c for each $1 over $147,212$44,165
Children aged 13 + years
1 child costs23c for each $1$8,465 plus 22c for each $1 over $36,803$16,562 plus 12c for each $1 over $73,606$20,978 plus 10c for each $1 over $110,409$24,658 plus 9c for each $1 over $147,212$27,970
2 children costs29c for each $1$10,673 plus 28c for each $1 over $36,803$20,978 plus 25c for each $1 over $73,606$30,179 plus 20c for each $1 over $110,409$37,540 plus 13c for each $1 over $147,212$42,324
3 + children costs32c for each $1$11,777 plus 31c for each $1 over $36,803$23,186 plus 30c for each $1 over $73,606$34,227 plus 29c for each $1 over $110,409$44,900 plus 20c for each $1 over $147,212$52,261
Children of mixed age
2 children costs26.5c for each $1$9,753 plus 25.5c for each $1 over $36,803$19,138 plus 22.5c for each $1 over $73,606$27,419 plus 19c for each $1 over $110,409$34,412 plus 11.5c for each $1 over $147,212$38,644
3 + children costs29.5c for each $1$10,857 plus 28.5c for each $1 over $36,803$21,346 plus 27.5c for each $1 over $73,606$31,467 plus 26.5c for each $1 over $110,409$41,220 plus 19c for each $1 over $147,212$48,213

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Brisbane / Sunshine Coast / Gold Coast / Far North Queensland

Prenuptial agreement disregarded in property settlement

Prenuptial agreement disregarded in property settlement

Silcox & Silcox

The “Prenuptial Agreement”

  1. As set out previously in this judgment the parties signed a prenuptial agreement on 31 May 1994, the day before the parties were due to be married.
  2. That document is in (nationality omitted) as that was the only language of the Wife at the time of the parties’ marriage. An accurate translation of that document is set out in paragraph (13) of this judgment.
  3. It is the Husband’s submission that this document should be seen as binding on the parties as it was entered into freely by both of them and they conducted their financial affairs in such a way as to reflect the terms of that prenuptial agreement.
  4. It is the Wife’s submission that this prenuptial agreement was signed by the parties some six years prior to the introduction of Part VIIIA of the Act and further that it was signed by both parties, and she in particular, without the benefit of any legal advice.
  5. It is the Wife’s further submission that she was put under considerable pressure by the Husband to sign the agreement in circumstances where he presented it to her the day before the marriage and he told her that if she did not sign the document the marriage would not proceed. It is the Wife’s evidence that she had moved from (country omitted) to Australia in order to marry the Husband, she was without any family or support in Australia and in those circumstances felt she had no other option available to her but to sign the agreement.
  6. It is further submitted on behalf of the Wife that subsequent to the parties’ marriage they did not conducted their financial affairs in accordance with the terms of the agreement. It is the Wife’s evidence that the proceeds of sale of her apartment in (country omitted) was used for the benefit of the parties and in particular for the payment of Mr K’s educational costs. Further, it is the Wife’s evidence that the various properties and resources of the Husband listed in the financial agreement were realised and whilst some of those proceeds were utilised in the purchase of Property R, the balance was used by the parties for the benefit of the family as a whole. The funds were used to meet the costs of the various trips made by the parties to (country omitted) and in particular in 1998 when the family moved to live in that country, for the purchase of motor vehicles and in meeting the day-to-day living expenses of the parties, particularly prior to the Husband becoming eligible to receive Centrelink payments and whilst the parties lived in (country omitted).
  7. The Husband at the commencement of the trial urged the Court to adjourn the hearing of the matter until the High Court handed down its decision in the matter of Thorne v Kennedy. In that matter the High Court on 10 March 2017 granted special leave to appeal on the question of the law of duress as it applies to financial agreements entered into pursuant to Part VIIIA of the Act.
  8. It was submitted by the Husband that if the Wife is arguing that the agreement entered into by the parties prior to their marriage should not be considered binding on the parties because it was entered into it by her under duress, then this court should await the determination of the High Court before dealing with this issue.
  9. The agreement signed by the parties predates the introduction of Part VIIIA of the Act. It was entered into in somewhat dubious circumstances and more particularly absent any legal advice to either of the parties. Further, the parties have not conducted their financial affairs in accordance with the terms of the agreement during the period of their relationship.
  10. Whilst the decision of the High Court in Thorne v Kennedy will be of genuine assistance in clarifying the law on the question of duress relating to financial agreements entered into pursuant to Part VIIIA of the Act, it is not a decision of relevance to this matter given the agreement predates the introduction of that legislation.
  11. Accordingly, the existence of this document and its terms do not prohibit this court from making orders adjusting the parties’ property interests if the Court is satisfied it is just and equitable to do so.

Spousal maintenance capacity unclear

Spousal maintenance capacity unclear

Stenner & Stenner (No 2) [2016] FamCA 146 (9 March 2016)

Spousal maintenance – The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/146.html

  1. This is an adjourned application for consideration of the Application in a Case filed by the wife on 20 November 2015 in which she seeks orders that (1) the husband pay the sum of $150 by way of spousal maintenance “until such time as these property matters are resolved”; (2) that the wife do provide the husband with an itemised account of all work undertaken with copies of receipts for payments made; (3) that the husband pay half the costs associated with ensuring the former matrimonial home is maintained during the period of its sale … and (4) that the husband recommence payments in respect of the mortgage with Citibank over the former matrimonial home.
  2. There have been material filed by way of affidavits and several financial statements since that time. The property is on the market for sale and has not been sold.
  3. On the issue concerning the payment of the mortgage with Citibank the husband’s evidence is that the mortgage in relation to the former matrimonial home is the subject of a moratorium agreed with the Citibank until July 2015 and that he is negotiating for the moratorium to continue but is not able to give the Court any evidence other than that.
  4. In relation to the question of the mortgage the business apparently is continuing to pay the business part of the mortgage and my understanding is that the business will continue to do so pending the sale of the property.
  5. In relation therefore to the paragraph 4 of the Application in a Case and on the basis that the property is on the market for sale, the moratorium is until July 2015 and that the husband is continuing to negotiate the continuing moratorium I will not make orders in terms of paragraph 4.
  6. The question then turns to the application by the wife for spousal maintenance on an interim basis. There is considerable dispute as to the income of the business and how that money is dealt with. The wife is alleging in her documents and before the Court today that the husband receives cash and keeps that cash or banks it for his own use when the money is actually income from the business and that therefore there is not full disclosure of the income from the business.
  7. The husband asserts that the income is as disclosed. I have received the exhibits today, two of which relate to Westpac bank activities of one of the Westpac accounts operated by the husband since the separation and the other is the Stenner Family Trust financial report for the year ended 30 June 2015. Those exhibits also raise issues which cannot be dealt with on a final basis because the evidence has not been tested.
  8. Clearly exhibit 1 indicates that there had been significant funds being paid into the Westpac account which exceed the income from the business of $300 per week alleged by the husband in his most recent financial statement to be his only income (other than the family benefits paid by the Government to the father in relation to the children in his care).
  9. He asserts in his financial statement filed on 5 February 2016 that he does not receive any salary and that his income from the business J Pty Ltd is estimated to be $300 per week. The Government benefits are $108 a week.
  10. There is also an issue in relation to the accuracy of the financial report for the year ended 30 June 2015 which has been received as an exhibit as it has not been signed and it is not necessarily confirmed as reliable information concerning the business which apparently is operated by the family trust showing a loss for the financial year ended 30 June 2015. The alleged salaries and wages disclosed in that are apparently not for the husband but for an employee of the business.
  11. The issue therefore that I have to determine on this interim basis is if there is sufficient evidence to establish the need of the wife for spouse maintenance and the capacity for the husband to pay.
  12. I obviously take into account all of the factors in section 75 when considering interim spouse maintenance application.
  13. As far as the wife’s circumstances are concerned the most recent financial statement filed on 25 February 2016 shows that the only income she currently receives is the Newstart of $270 per week which is an amount which the Court should not take into account when considering the spouse maintenance issues.
  14. The evidence of the wife by way of affidavit shows the steps the wife is taking and has taken in relation to finding suitable employment. I am satisfied on the current status of the material before me that the wife has established that she is currently not able to obtain appropriate employment.
  15. The question therefore turns as to the need of the wife for support taking into account the disputed items by way of expenses, and the conceded fact that the wife is living in the home without paying the mortgage. I accept, however, that she continues to have a need for spousal maintenance due to the need to provide for her own food and associated telephone, clothing, medical items.
  16. I am not accepting as reasonable all of the costs of the wife claimed in part N of her most recent financial statement for the purposes of interim spousal maintenance. It would be subject to proof as to whether the $60 per week for gardening/lawn mowing and $50 per week for cleaning (house/pool) are reasonable expenses but that will be determined in due course.
  17. I take into account, however, the overall needs of the wife on a reasonable basis. I am satisfied that she has established appropriately the need for the payment of $150 per week which is the spousal maintenance being sought in the Application in a Case filed on 20 November 2015.
  18. The factors then turn to the capacity of the husband to pay taking into account his financial circumstances. The business income indicates that the business is operating at a loss for the year ended 30 June 2015. The husband’s financial statement filed this February 2016 clearly indicates notwithstanding that the business operated at a loss for the financial year ended 30 June 2015 the husband continues to draw on his estimate $300 per week and the business continues to pay for him the car, phone and insurance of $50 per week and rent, petrol and power of $350 per week.
  19. The husband claims in the statement of financial circumstances the significant sums in relation to the education expenses for the children. I take into account significantly the husband’s responsibility for the primary care of the two children and the costs that would be associated with that over and above their education costs.
  20. The difficultly in these circumstances is the weight that I should give to exhibit 1 which shows significant sums being paid from the business account and the interpretation I should give for those. The difficulty I have with that is that they have not been tested. Some of them significantly relate to business expenses but others are clearly, possibly simply private expenses.
  21. It would appear, however, that the accounts are such that the husband has had the capacity to pay in those monies and draw out those monies over a period ranging from November 2015 through to January 2016.
  22. However, there is still insufficient information before me at this stage to make a finding on an interim basis that the husband has the capacity to pay the spousal maintenance which the wife seeks.
  23. Therefore although I have been satisfied that she has established the appropriate need for the $150 per week I am not satisfied that the contested information currently before me establishes sufficiently on an interim basis that the husband has the capacity to pay the spousal maintenance. Therefore I do not make that order and discharge the interim application.
  24. On the question of costs of the application for interim spousal maintenance each party bear their own costs.

Spousal maintenance and high needs child

Tipping & Barrington

Spousal maintenance and high needs child

Spousal Maintenance (interim) and general observations from the Court as to the costs of protracted litigation.

      1. Regarding spousal maintenance, the Full Court in Bevan & Bevan (1995) FLC 92-600 at 81981 held, inter alia, that an award of spousal maintenance requires the Court to make: (1) a threshold finding under s.72; (2) consideration of s.74 and 75(2); (3) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permits; and (4) discretion exercised in accordance with the provisions of s.74 which is reasonable in the circumstances.
      2. The Court has no difficulty at all in finding, on the evidence before it, that the Applicant Wife is unable to support herself by reason of having the care and control of a child of the marriage who has not attained the age of 18 years. The Mother is solely responsible for the care of the parties’ child, X. Her evidence is that when he was three years old he was diagnosed with autism spectrum disorder, global developmental delay and prenatal kidney abnormality and dilation. Moreover, in about October 2014, he was diagnosed with a severely retracted jaw. The medical evidence in relation to X creates a strong impression that he requires very substantial support for his social communication impairment and his repetitive and restrictive behaviours.
      3. X attends a special school, five days per week, between 9.30am and 2.45pm. The Court does not accept the contention advanced on behalf of the Husband that the Wife could, somehow and perhaps miraculously, find work during the hours that X attends his special school. The fact that the Mother has (omitted) qualifications and indeed (omitted) skills from her past employment, does not advance the Respondent Husband’s case one iota in this regard.
      4. The fact is that, in circumstances where she is solely responsible for his care with no financial support from the Husband since October 2015, it is in this Court’s view perfectly appropriate for her to focus her life on attempting to meet X’s special skills, as best she can. The Court finds that the Applicant Wife is unable to support herself adequately by reason of having the care and control of X, in all the circumstances of this case.
      5. Moreover, the Wife’s financial circumstances as evidenced by her financial statement sworn 1 March 2016 plainly demonstrate that she is in need of spousal maintenance. All of her income is derived from Government benefits. Quite apart from the fact that her total personal expenditure was not challenged in cross-examination, the Court, nonetheless, independently concludes that the expenses that she discloses for herself are reasonable, given the amount of spousal maintenance that she seeks. The Wife was, of course, cross-examined about her financial circumstances, but, with all due respect to counsel for the Respondent Husband, the focus of the cross-examination was misplaced.
      6. Much of the cross-examination focused on her financial circumstances immediately before, at, and after the date of the separation. The Applicant Wife may well have disposed of various items of property, and it may well be that there are some grey areas about these transactions, but it seems equally open to the Court, on the available evidence, to conclude that her actions were in proportion to her needs. In any event, the focus of the present application is her present and future needs and whatever may have happened in the past, does not inform the Court’s decision about her present needs, and future needs. She is clearly in need, and is unable to support herself adequately.
      7. The focus then turns to the Husband’s capacity to pay the spousal maintenance sought. The Husband’s most recent financial statement was sworn 12 July 2016, before a notary public in (country omitted). He deposes that his only income is from the (omitted) Pension Scheme which gives him a benefit, expressed in Australian dollars, of $1,094 per week. He deposes to personal expenditure of $1,427 per week. He, of course, did not make himself available for cross-examination on his financial circumstances and his adjournment application was declined, as was an earlier application to give evidence by video link.
      8. Nonetheless, even a cursory examination of the expenditure in his financial statement raises issues of concern. It is not clear, for example, whether there is a relationship between the trustees of (omitted) settlement and the Husband, relating to the mortgage or rent payments at item 21 of his financial statement. This accounts for $363 of weekly expenditure. It is unclear what property the rates or levies at item 22 relate to. This is $38 per week. He claims MasterCard payments of $100 per week at item 30, but one can only assume that he funds some of the expenditure referred to at part N of his financial statement, via his Mastercard, so the $100 per week is, in effect, double dipping.
      9. His claim for $350 per week for food is manifestly unreasonable, compared to the Wife’s claim of $300 per week, which includes the party’s son. He claims tobacco of $60 per week, in circumstances where the Court is not prepared to allow that expenditure in priority to meeting the needs of his Wife. In other words, even if no attention were directed to the question of whether the Husband has properly disclosed his income, his claim for expenses does not survive critical scrutiny.
      10. However, the focus of the Wife’s case was very much on the issue of the Husband’s non-disclosure of his financial circumstances, and the reality (she contends) that he has understated his income. The Wife’s argument in this regard, based on the evidence before the Court, is extensively set out in the case outline document prepared by Mr Mark Hodges, her solicitor, filed 14 July 2016. The relevant paragraphs are 13-15.6. These submissions are cross-referenced, not just to the relevant pages of the Wife’s affidavits, but also to source documents which were tendered and came into evidence, for example, as exhibit A1.
      11. As a result of this evidence, the Court is able to make the following findings:
        1. Notwithstanding the assertion contained in the Husband’s financial statement of 12 July 2016, his average monthly income is, more likely than not, in excess of $7000, being income received into his (omitted) Bank account, thus meaning that his weekly income is more like $1,770 per week, rather than the $1,094 that he asserts.
        2. The disclosure by the Husband at item 45 of his financial statement of his interest in a (omitted) retirement plan is insufficient, and misleading. He gives no value, even though he has been directed to provide information in relation to this asset and has declined to do so and even though the Wife’s expert evidence provides value in this regard. Significantly, in the present context, however, there is reason to believe that not only is this an asset which is valuable in the Husband’s hands, but it is also an asset that he could presently draw on, and which would supplement his income.
        1. The Husband has failed to properly account for the nature and value of his interest in the (omitted) Pension Scheme. The Wife’s evidence suggests that in addition to the yearly annuity that he receives as monthly income, he took a substantial lump sum benefit, in respect of which he has failed to make adequate disclosure as to how it was dealt with.
        1. Orders made on 19 May 2016 required the Husband to disclose the source of certain regular deposits into his (omitted) Bank account. He failed to do so. The Wife believes that the Husband has an interest in a (omitted) bank account and that this may explain the payments into the (omitted) Bank account. It is not clear whether this is the case or not. The Husband’s failure to disclose, as ordered, is merely one example of many in this case. The Court accepts that the amounts in question are relatively small, but the obligation on the Husband to disclose is clear, and he has failed to do so.
  1. The Wife has established the necessary elements to justify making an order for interim spousal maintenance in the sum of $1,000 weekly.