Child support departure order refused
REASONS FOR JUDGMENT
- These are the reserved Reasons for Judgment in relation to Orders made on 28 November 2016.
- There were three issues which required the Court’s determination at the interim hearing:
- Firstly, whether time between the children and the father ought to be supervised on the basis that there was an unacceptable risk of harm to the children if such time was not supervised;
- Secondly, whether there should be a departure order in respect of the Child Support Agency’s assessment of the father to pay child support; and
- Thirdly, whether there should be an order for urgent spousal maintenance.
Uncontested Relevant Facts
- The parties are the parents of two children, X, born on (omitted) 2007 and Y, born on (omitted) 2011.
- The parents were married on (omitted) 2007, but they lived together from 2004 until separation in January 2016.
- Since separation, the children have been living with the mother.
- Between the date of separation and 4 July 2016, the children had been spending some time with the father. There is dispute between the parents on how that time occurred and the extent of the Respondent’s involvement in the children’s care. Since 4 July 2016 the children had not spent any time with the father.
- X was been diagnosed with Attention Deficit Hyperactivity Disorder in 2014 and Autistic Spectrum Disorder and Asperger’s Syndrome in 2015. X is medicated with Ritalin.
- On 31 January 2016, the Respondent was admitted to the Psychiatric Emergency Care Centre at (omitted) Hospital. He was discharged on 4 February 2016.
- On 12 February 2016, the Police applied for and were granted a Provisional Apprehended Domestic Violence Order.
- On 17 February 2016, the Penrith Local Court made a Final Apprehended Domestic Violence Order for a period of 12 months, for the protection of the Applicant and both children. The Respondent was prohibited from residing with the Applicant and the children at the former matrimonial home.
- In March 2016 the Final Apprehended Domestic Violence order was varied to prohibit the Respondent from coming within 100m of the Applicant’s residence.
- On 10 July 2016 the Final Apprehended Domestic Violence Order was varied to include a prohibition on the Respondent from contacting the Applicant or the children directly or from going within 100 meters of the former matrimonial home or where the Applicant and children were residing.
- On 22 July 2016, the Respondent was convicted of contravening Apprehended Violence Orders at Penrith Local Court. He received a good behaviour bond.
- The Respondent continues to receive treatment for his mental health issues. He is prescribed medication by his General Practitioner. He sees a Psychologist approximately once per month.
The Relevant Law
- Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
- Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
- In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.
- The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.
- In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
- It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.” The focus is not on the relationship as such, but on the benefit the relationship might have for the child.
- In Collu & Rinaldo the Full Court pointed out that a number of s 60CC(2) and (3) considerations potentially overlap, and where considerations overlapped it may be appropriate to consider the additional considerations first.
- In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence. The Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
- Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.
- In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.
- The Full Court in Goode v Goode mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, such as this one. The Full Court in Goode & Goode also said:
.. the procedure for making interim parenting orders will continue to be an abridged process, where the scope of the enquiry is ‘significantly curtailed’. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
- Further Full Court authority has expanded upon what the Full Court said in Goode & Goode. In Marvel & Marvel where the Full Court made the following obiter comments:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing….
- Notwithstanding that a cautious or conservative approach is at times appropriate such an approach cannot fetter a Court’s discretion judiciously exercised. Any outcome determined by the Court must be based on evidence and it must be an outcome which the Court holds is in the child’s best interest.
- In relation to the issue of unacceptable risk of harm, Her Honour Justice Ryan stated:
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather that some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard.
- The comments above by Her Honour were made in the context of a final hearing, where the evidence was tested. It is difficult to see how any proper assessment of risk of harm can thus be made at the interim stage where any findings of fact are difficult to make given the untested nature of much of the evidence. However, some guidance is offered by the Full Court, for example by what was said in Keats & Keats, in respect of the conduct of interim proceedings:
…the principles that emerge from cases such as SS v AH  FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
- There are a number of controversial assertions in this matter, and there are a number of agreed facts all of which are relevant to the Court’s determination of the interim parenting issues.
- The Court is also mindful of what the Full Court said in Banks & Banks  FamCAFC 36; (2015) FLC 93-637:
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
Risk of Harm
- There are two central issues to the assessment of the risk of harm to the children. The first is the father’s mental health and the second are the allegations of violence against the father.
Respondent’s Mental Health
- On 31 January 2016 the Respondent was admitted to (omitted) Hospital and assessed for Mental Health. Noted in Exhibit 4 is the following history:
1. Reports chronic suicidality last 6/12 but flat last 2 years. Plan – drive his van under a truck. Has photo of his kids on viser which is protective factor.
2. Feelings hopeless/helpless/worthless
- On 10 July 2016, the Respondent sent to the Applicant a text message which read:
1. “Didn’t your parents teach you not to pick on people with mental illness? Won’t be my fault if I don’t go alone…”
- This text was sent in the context of final Apprehended Domestic Violence Orders being in place.
- Tendered in the father’s case was Exhibit 1, being a letter from Ms W a counselling psychologist to the Respondent’s solicitor dated 9 September 2016. That letter indicates that the father has attended nine counselling sessions with the psychologist since 9 February 2016.
- At the initial consultation, the Respondent presented with “extremely severe symptoms of depression (with suicidal ideation), anxiety and stress (DASS 21) in response to marital difficulties”.
- Exhibit 1 further states:
1. At today’s session the DASS 21 was readministered. Results indicate that symptoms of depression, anxiety and stress are all now in the normal range… To consolidate progress a further appointment has been made in six weeks’ time.”
- The DASS21 is a self-administered tool, a matter which was discussed during the tender process with the Respondent’s lawyer. Ms W was not called as a witness in the father’s case. There is very little in that letter which sheds any light on what facts the Respondent might have disclosed to the therapist during his nine sessions with her, nor what part of Ms W’s opinion is based on any of those asserted facts and/or on her own observations of the Respondent.
- If the letter was meant to be an expert’s report it falls well short, noting the requirements of s79 Evidence Act 1995 (Cth). The only opinions expressed are an interpretation of what the DASS21 results indicate and that the Respondent has made a good response to combined pharmacotherapy and psychotherapy. It shows that the Respondent is continuing his counselling sessions.
- On 30 January 2016, the Applicant attended at (omitted) Police Station. Exhibit 3 indicates that she stated:
Throughout her marriage her partner has caused her mental abuse and can be aggressive when he becomes angry. Ste stated that her partner has never assaulted her and no arguments have taken place…
- The history of the Apprehended Domestic Violence Order has already been outlined. Both of the children were named as protected persons. The Provisional Order was made on 12 February 2016.
- The Respondent was present in Court when the Final Apprehended Domestic Violence Order was made on 17 February 2016. That Order was due to expire on 17 February 2017.
- On 4 March 2016, the Respondent attended the Applicant’s home. What occurred between the parties on this occasion is disputed between them however it resulted in a variation of the Final Apprehended Domestic Violence Order whereby the Respondent could not go within 100 m of the Applicant’s residence.
- On 10 July 2016 the terms of the Final Apprehended Domestic Violence Order were further varied, such that the Respondent could not have any contact with the Applicant or the children and could not go within 100m of their home.
- On 14 July 2016, the Respondent in the face of the varied orders sent to the Applicant’s mother a text message asking her to tell the Applicant and the children certain things. He was subsequently charged with a breach of the orders.
- On 20 July 2016, the Respondent attended the Applicant’s residence. He says that it was a date he was due to collect his property and that the Police were to meet him there. However, on his own evidence when he arrived he did not see any police cars, but he nevertheless approached and opened the roller door. The Respondent says he was subsequently arrested for being within 100m of his home.
- The Respondent’s criminal history is in evidence (Exhibit 5), which discloses that on 22 July 2016 at Penrith Local Court the Respondent received the following sentences:
- Charge Number (omitted): “Bond s9: 2 years to comply with current AVO” – with respect to the offence of contravene prohibition/restriction in AVO on 5-6 July 2016 (the Respondent was charged on 10 July 2016);
- Charge Number (omitted): “Bond s9:2 years to comply with AVO” – with respect to the offence of contravene prohibition/restriction in AVO on 14 July 2017 (the Respondent was charged on 15 July 2016);
- Charge Number (omitted): 6 month custodial sentence suspended on entering a s12 bond for a period of 6 months, to continue counselling and comply with his medication regime as recommended by his treaters – with respect to the offence of “destroy or damage property (DV)” on 20 July 2016 (the Respondent was charged on 20 July 2016); and
- Charge Number (omitted): 12 month custodial sentence suspended on entering a s12 bond for a period of 12 months, to continue counselling and comply with his medication regime as recommended by his treaters, and to be supervised by NSW Probation Services to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation (the Respondent was charged on 20 July 2016).
- The Respondent does not mention the suspended custodial sentences in his Affidavit, only that he received a s9 bond for contravening the terms of the Final Apprehended Domestic Violence Order. The Respondent does depose to the termination of supervision by New South Wales Probation Services. He does say that he was “locked up” after being interviewed by the Police as a result of a text message he sent to the mother on 10 July 2016.
- The Applicant sought orders in the interim proceedings for various restraints due to the fact that the Apprehended Domestic Violence Order was going to end. The Court declined to make any such orders on the basis that the matter would be brought back before 17 February 2017 and the application for the restraints could then be made.
- As noted earlier, in circumstances where findings of fact are not open to the Court, the Court must make an assessment of the risk of harm to the children based on the probabilities of the competing claims and the likely impact on children.
- The Court finds that the risk of harm to the children is being present when:
- the Respondent might engage in behaviour which falls within the definition of family violence, or other types of behaviour which may amount to criminal behaviour; and/or
- the Respondent might engage in self-harming or irrational behaviour.
- There is no evidence that the Respondent was engaged in any physical violence against the Applicant or the children. However, there is evidence that the Respondent engaged in conduct which was a breach of the Apprehended Violence Order on more than one occasion; an order that was put in place, inter alia, for the protection of the children the subject of these proceedings.
- The evidence is also that the Respondent is continuing with his therapy and medication as recommended by his treaters. The Court notes that these are the conditions of his good behaviour bond in any event, and that he is obliged by Court order to do so.
- It may be that upon the testing of evidence the Respondent’s conduct is not found to be as concerning as it presently appears. At present it is a matter of the Court acting protectively and cautiously at this interim stage of the proceedings.
- In light of all of the above there is an unacceptable risk of harm to the children if they were to spend unsupervised time with the father at this interim stage.
Child Support Departure Order
- The Applicant brings an application for a departure order pursuant to s117 Child Support (Assessment) Act 1989 (“CSA Act”). It was said to be an application pursuant to s117(2)(c) of the CSA Act.
- In Luton v Lessels  HCA 13; (2002) 210 CLR 333 at 350-351, the High Court discussed various aspects of the Child Support Scheme. Justice Gaudron and Hayne relevant held:
The Assessment Act records (s 3(1)) that “[t]he parents of a child have the primary duty to maintain their child”. This duty is said by the Assessment Act (s 3(2)), (a) to be not of lower priority than the duty of the parent to maintain any other child or another person; (b) to have priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other child or person the parent has a duty to maintain; and (c) to be not affected by the duty of any other person to maintain their child or any entitlement the child or another person may have to an income tested pension, allowance or benefit. …the principle object of the Assessment Act is said (s 4(1)) to be “to ensure that children receive the proper level of financial support from their parents”.
Part 5 of the Assessment Act (Sections 35-39) provides for the administrative assessment of child support. “child support” is defined (s 5) as “financial support” under [the Assessment] Act including financial support under [the] Act by way of lump sum payment or by way of transfer or settlement of property. An administrative assessment of child support requires the application of one or more of several statutory forms that is, or are, apposite in a particular circumstance. Section 79 of the Assessment Act provides that “an amount of child support due and payable by a liable parent to a carer entitled to child support is a debt due and payable by the liable parent to the carer.”
Where there has been an administrative assessment, both the liable parent and the carer may lodge with the Registrar an objection against the assessment. The person aggrieved by the decision on objection may, pursuant to Section 110 of the Assessment Act, appeal to a court having jurisdiction under that Act”.
Part 7 of the Assessment Act (ss 99-146) deals with the jurisdiction of courts under the Act. In particular, provision is made for applications to a court for a declaration about the applicability of the administrative assessment provisions. Provision is made for what are called “appeals” against incorrect administrative assessments and for orders for departure from administrative assessment…
- The jurisdiction to make an order under s117 departing from an administrative assessment of child support is a discretionary jurisdiction: Hides & Hatton  FamCA 28; (1997) FLC 92-759.
- The requirement in s117 of the CSA Act is that where an application is made for a departure order, the Court must be satisfied that a ground for departure exists (s117(2)), that it is just and equitable (s117(4)) and otherwise proper (s117(5)) to make the departure order: Gyselman & Gyselman  FamCA 93; (1992) FLC 92-279 at 79,064. All three elements must be addressed and in that sense, the Court’s discretion is highly structured.
- Each of the grounds in s117(2) is prefaced by the words “in the special circumstances of the case”. As such, the facts of the case must establish something which is special or out of the ordinary. The intention of the legislature is that the Court will not interfere with the administrative formula in the ordinary run of cases: Gyselman.
- The Court is required to undertake the task of considering the matters set out in paragraphs (a) to (g) of sub-section 117(4), and the facts of the case will determine the relevance or significance of the factors being considered: Hides & Hatton.
- Similar considerations, namely that the facts of the case will determine the relevance or significance of the factors being considered, apply to the Court’s determination as to whether it is ‘otherwise proper’ within the meaning of s 117(5) to make a particular order: Babbit & Babbit  FamCAFC 151 at ; see also Hallinan & Witynski  FamCA 1127; (1999) FLC 98-009.
- It was submitted on behalf of the Applicant that the threshold set out in s117(2)(c) was met by the following:
- That it was going to be an arduous task going through the agency and through the Court to settle matters when they could both be dealt with in the one forum;
- That the income of the father is not reflected in the administrative assessment;
- That the mother has the sole care of the children;
- That it was in the interests of both parents for the children to be adequately maintained; and
- That the children were not adequately maintained because the income which the Respondent’s father’s liability for child support was assessed upon is significantly lower than the income he has declared in his Financial Statement filed on 7 October 2016.
- The evidence in the mother’s case in support of her application for a departure order was extremely limited. The Court was not taken, during submissions, to any specific evidence in the mother’s case except the Child Support Assessment issued 13 October 2016 (Exhibit 6). It was submitted on behalf of the mother that she had not applied to the Child support agency to have that assessment reviewed or varied; that is she has not lodged any objection to the assessment, but rather she applied to the Court for a departure order because there were proceedings already on foot.
- In respect of the departure order sought:
- The Applicant has not taken any steps with the Child Support Agency to have the administrative assessment reviewed or varied;
- The fact of proceedings being on foot does not take this matter into the ‘special circumstances’ category, it might simply make it more convenient to the Applicant, this not being a relevant test;
- The fact that the Respondent estimates his income at a different rate to the income on which he was assessed to pay child support does not ipso facto mean that the administrative assessment resulted in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child;
- Except for the matters contained in the parties’ financial statements there was no other evidence going to the relevant matters pursuant to s117(4); and
- There was no evidence going to the relevant matters pursuant to s117(5).
- The Court is not persuaded by the submissions made on behalf of the Applicant that any special circumstance has been established and that the Court ought to, in the exercise of its discretion, make an order departing from the administrative child support assessment. As such, the application for a departure order is dismissed.
Urgent Spousal Maintenance
- The Applicant sought an order pursuant to s77 of the Act for urgent spousal maintenance.
- It was submitted on behalf of the Applicant that she had an immediate need of financial assistance as she had no income and was unable to meet her expenses. The Applicant relied on her Financial Statement and that of the Respondent.
- Urgent spousal maintenance applications are usually by way of a summary hearing allowing for a wide discretion without the evidentiary requirements of an interim spousal maintenance application under sections 72 and 80 or a final application under section 72. An order made under section 77 is of a temporary nature. It is intended to deal with urgent situations usually without all of the evidentiary material having been filed and where the evidence is untested.
- There are many issues between the parties which cannot be resolved in this interim hearing.
- However, the evidence which is available to the Court by way of the parties’ Financial Statements is that the Applicant is in urgent need of financial assistance and that the Respondent has a limited capacity to pay urgent spousal maintenance.
- The Court is satisfied that the wife is in immediate need of financial assistance and that it is not practicable in the circumstances to determine what order, if any, should be made on a contested interim hearing. The Court is satisfied that the Applicant has a right to maintenance under section 72(1) of the Act. The Court is satisfied that is it is reasonable to make an order for urgent spousal maintenance.
- The Applicant’s weekly income on the basis of her untested Financial Statement is $724 with such income coming in from parenting payments, family tax benefit, carer’s allowance and family payment; with $55 per week of that coming from the Respondent by way of child support. The Court is to disregard any entitlement of the party to an income tested pension, allowance or benefit: s75(3). The Applicant deposes to necessary weekly commitments of an amount of $1669 – however, not all of these are the Applicant’s personal expenses as some of the expenses related to the children.
- There is currently some $410,000 which is sitting in a trust account in the parties’ names. These funds are the subject of the hotly contested s79 application. The Applicant submits that if she is successful on her application, the entirety of those funds will go to her pursuant to a property adjustment order. It was submitted that if such funds were to be utilised by way of partial property settlement or by way of lump sum urgent spousal maintenance then this would deplete the pool to the Applicant’s ultimate detriment.
- The Respondent has the capacity from income to pay urgent spousal maintenance on the basis of the untested material before the Court. The Respondent deposes in his Financial Statement to a gross income of approximately $2000 per week. After his expenses he has some $367 left over each week.
- Doing the best the Court can on the untested evidence, an order is made that the husband pay urgent spousal maintenance to the wife in the sum of $365 per week.