Appleton & Appleton - [2011] FamCA 70

FAMILY COURT OF AUSTRALIA

APPLETON & APPLETON

[2011] FamCA 70

FAMILY LAW – CHILD SUPPORT – father’s application to set aside binding child support agreement on the grounds of exceptional circumstances – Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) does not render this child support agreement more difficult to set aside – where the father is of considerable financial means – disparity between child support payable under the agreement and child support payable as assessed by Child Support Agency does not constitute exceptional circumstance or hardship – limitations on the father’s ability to make use of tax effective trust distributions are not material considerations – decline in the father’s financial circumstances as a result of the global financial crisis was temporary – father’s financial circumstances are improving – father’s failure to reduce discretionary expenditure contributed to his temporary financial insecurity – absence of temporal correlation between child support liability and father’s capacity to pay child support does not itself constitute exceptional circumstance or hardship – child support agreement entered into as consideration for binding financial agreement – setting aside child support agreement would cause some unfairness to the mother – application to set aside agreement is dismissed

FAMILY LAW – CHILDREN – parties agree to equal shared parental responsibility

FAMILY LAW – CHILDREN – equal or substantial and significant time – whether children’s alternate weekend time with the father should be expanded to at least one weekday – parental conflict is not an influential factor – advantage the children would obtain in participating in routine extra-curricular activities is not outweighed by the children spending a few extra hours each fortnight with the father – children’s weekend time with the father will conclude on Monday morning – telephone communication

Child Support (Assessment Act) 1989 (Cth) ss 80C(2)(c), 136
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth), Sch 5
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 69ZU

Balzano & Balzano (2010) FLC 98-048
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Venson & Venson (No. 2) [2010] FamCA 963

APPLICANT:

Mr Appleton

RESPONDENT:

Ms Appleton

FILE NUMBER:

NCC

3018

2007

DATE DELIVERED:

17 February 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

27 & 28 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levick

SOLICITOR FOR THE APPLICANT:

Rankin Nathan Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Peter Hamilton & Associates

Orders

With the consent of the parties, it is ordered in accordance with the document entitled “Minutes of Consent” signed by the parties and/or their legal representatives, dated 28 January 2011, which is marked Exhibit A and placed with the Court file.
1.1The Orders made in the Family Court of Australia, Newcastle, dated 18 October 2007, be discharged.
1.2The Mother and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Appleton & Appleton [2011] FamCA 70
Case: [2011] FamCA 70
Decision Date: 17 February 2011

CaseChat Overview and Summary

The case involved an application by the father to set aside a binding child support agreement. The father sought to discharge previous orders made by the Family Court of Australia and establish equal shared parental responsibility for the parties' three children. The court was required to determine whether exceptional circumstances existed to justify setting aside the child support agreement and to make orders regarding the children's time with each parent.

Justice Austin considered the father's financial circumstances, noting his considerable means and the temporary nature of any decline in his financial position due to the global financial crisis. The court found that the disparity between the child support payable under the agreement and that assessed by the Child Support Agency did not constitute exceptional circumstances or hardship. Furthermore, limitations on the father's ability to utilise tax-effective trust distributions and his failure to reduce discretionary expenditure were not considered material to the application. The court also addressed the children's time with the father, considering whether their alternate weekend time should be expanded to include a weekday, and determined that parental conflict was not an influential factor.

The court reasoned that the father's financial insecurity was temporary and exacerbated by his own spending habits, and that the absence of a temporal correlation between his child support liability and his capacity to pay did not, in itself, amount to exceptional circumstances. The child support agreement had been entered into as consideration for a binding financial agreement, and setting it aside would cause unfairness to the mother. Consequently, the application to set aside the child support agreement was dismissed. The court also made consent orders regarding equal shared parental responsibility, the children's living arrangements with the mother, and detailed provisions for the children's time and communication with the father, including specific arrangements for school holidays, birthdays, and other significant periods.

Orders

Orders of the court

With the consent of the parties, it is ordered in accordance with the document entitled “Minutes of Consent” signed by the parties and/or their legal representatives, dated 28 January 2011, which is marked Exhibit A and placed with the Court file.

1.1 The Orders made in the Family Court of Australia, Newcastle, dated 18 October 2007, be discharged.

1.2 The Mother and Father have equal shared parental responsibility for the children K born … March 2000, B born … May 2003 and M born … September 2005.

1.3 The Mother and Father each have responsibility for making decisions concerning the day to day care, welfare and development of the children whilst the children are in their respective care.

1.4 The children live with the Mother.

1.5 The children spend time and communicate with the Father as follows:

1.5.1 For half of each school holiday period as agreed or failing agreement from the conclusion of school on the last day of school term until 3.00pm on the day that marks the midpoint of the school holiday period in each even numbered year and from 3.00pm on the day that marks the midpoint of the school holiday period until the commencement of school at the beginning of the next school term in each odd numbered year.

1.5.2 From 3.00pm 22 December until 3.00pm 25 December in each odd numbered year.

1.5.3 Should the Easter period not fall within the school holidays:

1.5.3.1 From the conclusion of school on the Thursday immediately prior to Good Friday until 3.00pm Easter Saturday on the first occasion following the making of these Orders that the Easter period does not fall during the school holidays and each alternate occasion thereafter.

1.5.3.2 From 3.00pm Easter Saturday until the commencement of school on the Tuesday immediately following Easter Monday on the second occasion following the making of these Orders that the Easter period does not fall during the school holidays and each alternate occasion thereafter.

1.5.4 From 5.00pm on the Saturday prior to Father’s Day until 7.00pm Father’s Day.

1.5.5 On the birthdays of each of the children, being … March, … May and … September, as follows:

1.5.5.1 On a school day from 5.00pm until 8.00pm.

1.5.5.2 On a non-school day from 3.00pm until 8.00pm, if the children are not otherwise spending time with the Father that day.

1.5.6 On the Father's birthday, being … April, as follows:

1.5.6.1 If the father’s birthday is a school day, from the conclusion of school on the father’s birthday, until the commencement of school, or 10.00am if it is a non-school day, on the day following the father’s birthday.

1.5.6.2 If the father’s birthday is not a school day, from 7.00pm the day before until 8.00pm on the father’s birthday.

1.5.6.3 If the father’s birthday occurs during a school holiday period when the children are living with the Mother and the children will be more than 100km from McDonalds at C on that day then the children will not spend time with the Father on this day.

1.5.7 At other times as agreed between the parties in writing.

1.6 The periods in 1.5 to be suspended as follows:

1.6.1 From 3.00pm 22 December until 3.00pm 25 December in each even numbered year.

1.6.2 Should the Easter period not fall within the school holidays:

1.6.2.1 From the conclusion of school on the Thursday immediately prior to Good Friday until 3.00pm Easter Saturday on the second occasion following the making of these Orders that the Easter period does not fall during the school holidays and each alternate occasion thereafter.

1.6.2.2 From 3.00pm Easter Saturday until the commencement of school on the Tuesday immediately following Easter Monday on the first occasion following the making of these Orders that the Easter period does not fall during the school holidays and each alternate occasion thereafter.

1.6.3 From 5.00pm on the Saturday prior to Mother’s Day until 7.00pm Mother’s Day.

1.6.4 On the birthdays of each of the children, being … March, … May and … September as follows:

1.6.4.1 On a school day from the conclusion of school until 5.00pm.

1.6.4.2 On a non-school day from 3.00pm until 8.00pm, if the children are otherwise spending time with the Father that day.

1.6.5 On the Mother’s birthday, being … July, as follows:

1.6.5.1 If the mother’s birthday is a school day, from the conclusion of school on the mother’s birthday, until the commencement of school, or 10.00am if it is a non-school day, on the day following the mother’s birthday.

1.6.5.2 If the mother’s birthday is not a school day, from 7.00pm the day before the mother’s birthday until 8.00pm on the mother’s birthdays.

1.6.5.3 If the mother’s birthday occurs during a school holiday period when the children are spending time with the Father and the children will be more than 100km from McDonalds at C on that day then the children will not spend time with the Mother on this day.

1.7 The periods in 1.5 to be implemented as follows:

1.7.1 At the commencement of each period by the Father or his nominee collecting the children from school, with the Mother or her nominee to bring to the school any child that is not attending school that day, if it is a school day and by the Father or his nominee collecting the children from the Mother or her nominee at McDonalds at C if it is a non-school day.

1.7.2 At the conclusion of each period by the Father or his nominee returning the children to school, with the Mother or her nominee to attend the school if any child is not attending school that day to collect that child, if it is a school day and by the Father or his nominee returning the children to the Mother or her nominee at McDonalds at C if it is a non-school day.

1.8 If either party will be unavailable to care for the children for more than one (1) consecutive night during a period when the children are living with or spending time with them then he or she is to give the other parent the first option to care for the children during that period.

1.9 The parties are to keep each other informed of their current residential address, landline and mobile telephone numbers, and email address and notify the other of any changes to those details within 24 hours of such change.

1.10 Each party is to keep the other informed at all times as to all medical, dental or other health related treatment being undertaken by the children including the name and telephone number of the treating dental, medical or other professional.

1.11 Each party is to authorise any medical, dental or allied health professional who treats the children to speak with both parties about the children’s health and medical treatment, including providing both parties with copies of any reports or other information.

1.12 The parties must telephone the other as soon as possible on the happening of any of the following:

1.12.1 The children or any of them becoming seriously ill.

1.12.2 The children or any of them becoming hospitalised.

1.12.3 The children or any of them being involved in an accident.

1.13 Each party is to provide such consents and/or authorities as may be required by the school or schools the children attend to enable each party to receive reports, school photograph order forms, letters and any other notices in relation to the children and to permit both parties to speak with the children’s teachers concerning each child’s education and school performance.

1.14 The parties are each restrained from denigrating the other or any member of the other party’s family or household in the presence or hearing of the children and, as far as possible, from allowing any other person to denigrate the other party or any member of the other party’s family or household in the presence or hearing of the children.

1.15 Any Passport issued to any of the children is to be held by the Mother, other than as provided for in Order 1.16.

1.16 Either party is at liberty to take the children on an overseas holiday during a period that the children are living with or spending time with them or during such other period as agreed between the parties providing that:

1.16.1 They provide the other party with at least sixty (60) days notice in writing, by letter or email, of their intention to take the children overseas, including notice of the proposed departure date and destination/s.

1.16.2 The countries to be visited during the overseas holiday must, unless otherwise agreed in writing between the parties:

1.16.2.1 Be a signatory to the Hague Convention on International Child Abduction, Singapore or as agreed.

1.16.2.2 Have an Australian Department of Foreign Affairs and Trade (DFAT) travel advisory notice of no higher than Level 1 – Be Alert to Your Own Security or Level 2 – Exercise Caution at the time of travel.

1.16.3 If the children are travelling overseas with the Father, the Mother must provide the children's Passports to the Father not less than thirty (30) days prior to departure.

1.16.4 At least fourteen (14) days prior to the nominated departure date, pursuant to 1.16.1, the travelling party must provide the other party with the following information in writing:

1.16.4.1 Proposed travel itinerary;

1.16.4.2 Flight details;

1.16.4.3 Contact addresses and contact telephone number(s) for the duration of the period that the children are to be overseas.

1.16.5 The Father must deliver the children’s Passports to the Mother within seven (7) days of the children returning from the overseas holiday.

The parties shall take all reasonable steps to ensure that the children spend time with the father, in addition to the time prescribed by Order 1.5 hereof, each alternate weekend during school terms, and for that purpose:

(a) The time shall commence on the first weekend of each school term,

(b) The time shall commence at the conclusion of school on Friday,

(c) The time shall conclude at the commencement of school on the following Monday, unless the Monday is a public holiday in which case the time shall conclude at the commencement of school on the following Tuesday.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

(a) The father each Tuesday and Thursday when the children are living with the mother, between 6.30pm and 7.00pm on Tuesday and between 6.00pm and 6.30 pm on Thursday, and for that purpose the father shall telephone the children on the telephone number nominated and provided by the mother to the father pursuant to Order 1.9 hereof, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.

(b) The mother each Tuesday and Thursday when the children are spending time with the father, between 6.00pm and 6.30pm on each day, and for that purpose the mother shall telephone the children on the telephone number nominated and provided by the father to the mother pursuant to Order 1.9 hereof, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

The application to set aside the child support agreement dated 11 September 2007 is dismissed.

Any and all outstanding applications are dismissed.

NOTATION

A. With the consent of the parties, Notation A1 is made in accordance with the document entitled “Minutes of Consent” signed by the parties and/or their legal representatives, dated 28 January 2011, which is marked Exhibit A and placed with the Court file.

A1. It is agreed between the parties that Order 1.8 is not intended to prevent the children, or any of them, spending more than one (1) consecutive night with relatives, such as grandparents, and it is the parties’ intention in agreeing to Order 1.8 that this Order is to be used in situations when one party is unable to personally care for the children for more than one consecutive (1) night.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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