DANSON & DANSON - [2015] FamCA 1167

FAMILY COURT OF AUSTRALIA

DANSON & DANSON

[2015] FamCA 1167

FAMILY LAW – CHILDREN – Best Interests – International Relocation – Where the parties agreed to consent orders at the trial which allow the children to relocate to the USA with their mother – Where the only issue to determine is the time the children spend with the father.

FAMILY LAW – CHILD SUPPORT – Application for departure – Where the mother seeks non-periodic child support in addition to the payment of any assessment of periodic child support – Where the mother has already sought a departure from a child support assessment through administrative review – Where she now seeks a departure from this Court – Where the father seeks an order that the mother’s application be dismissed – Whether the facts create an estoppel such that the mother’s application to this Court is an abuse of process justifying its dismissal.

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the husband seeks an equal division of the property pool – Where the wife seeks a 70:30 division in her favour – Where the wife made a greater initial contribution – Where the parties contributed equally during their marriage – Whether a further adjustment should be made in accordance with the s 75(2) factors.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Danson

RESPONDENT:

Ms Danson

FILE NUMBER:

BRC

10735

2013

DATE DELIVERED:

22 December 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

24, 25, 28 & 29 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page of Queen’s Counsel

SOLICITOR FOR THE APPLICANT:

Damien Greer Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steele of Counsel

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

Parenting

That in addition to the time the children, L born … 2000 and T born … 2004 (“the children”), are to spend with the father pursuant to the Order of this Court of 6 October 2015, they shall also spend time with him as follows:
(i)From 9:00 am on Wednesday, 23 December 2015 until 4:00 pm on Christmas Day, 2015;
(ii)From 10:00 am on Boxing Day, 26 December 2015 until 11:00 am on Wednesday, 30 December 2015;
(iii)During the second half of their State X Christmas school holidays in even numbered years, provided that time is spent with the father in the United States of America;
(iv)During such times when the father may be in City Y, State X outside the State X summer and Christmas school holiday periods, on the giving of at least three weeks’ notice in writing to the mother, for a full week, with the father to ensure that they attend school during that week if it is during school term and, if the father is staying for longer than a week, then from the second week onwards, from after school or 4:00 pm Thursday until 5:00 pm the following Sunday in each subsequent week the father spends in State X on such visits.

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

Case: [2015] FamCA 1167
Decision Date: 22 December 2015

CaseChat Overview and Summary

In *Danson & Danson*, Forrest J determined parenting arrangements, child support obligations, and property division between the parties. The primary parenting dispute concerned the time the children would spend with their father, following consent orders allowing their relocation to the USA with their mother. The child support issue involved the mother's application for non-periodic child support in addition to periodic assessments, which the father sought to have dismissed on the grounds of estoppel, arguing it was an abuse of process. The property settlement dispute centred on the appropriate division of the parties' assets, with the husband seeking an equal split and the wife seeking a 70:30 division in her favour, considering initial contributions and s 75(2) factors.

The court was required to determine the specific times the children would spend with their father, given the international relocation. It also had to consider whether the mother's application for non-periodic child support constituted an abuse of process, given a prior administrative review of child support assessments. Finally, the court needed to decide on the just and equitable division of the parties' property pool, assessing the weight to be given to initial contributions, equal contributions during the marriage, and the relevant s 75(2) factors.

Forrest J made orders for the children to spend specific periods with the father, including during school holidays and other times when the father visits the USA, with provisions for notice and attendance at school. Regarding child support, the court ordered the father to provide non-periodic support in the form of school fees and private health insurance premiums, calculated as 64% of the costs, up to specified maximums. These non-periodic payments were not to reduce the father's liability under existing administrative assessments. In relation to property, the court ordered an equal division of the net property pool, finding that while the wife made a greater initial contribution, the parties' equal contributions during the marriage and the s 75(2) factors did not warrant a further adjustment in her favour.

Orders

Orders of the court

Parenting

That in addition to the time the children, L born … 2000 and T born … 2004 (“the children”), are to spend with the father pursuant to the Order of this Court of 6 October 2015, they shall also spend time with him as follows:

(i) From 9:00 am on Wednesday, 23 December 2015 until 4:00 pm on Christmas Day, 2015;

(ii) From 10:00 am on Boxing Day, 26 December 2015 until 11:00 am on Wednesday, 30 December 2015;

(iii) During the second half of their State X Christmas school holidays in even numbered years, provided that time is spent with the father in the United States of America;

(iv) During such times when the father may be in City Y, State X outside the State X summer and Christmas school holiday periods, on the giving of at least three weeks’ notice in writing to the mother, for a full week, with the father to ensure that they attend school during that week if it is during school term and, if the father is staying for longer than a week, then from the second week onwards, from after school or 4:00 pm Thursday until 5:00 pm the following Sunday in each subsequent week the father spends in State X on such visits.

Child Support

That pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the father shall provide child support to the mother for the children otherwise than in the form of periodic amounts, more particularly, in the following forms:

(a) The sum of $18,336 for school fees charged by A School, Brisbane, for the second semester of 2014;

(b) The sum of $5,200 for school fees charged by B School, Brisbane for the 2015 school year;

(c) Upon receipt by the father from the mother of proof that private school fees for the children’s education in State X exceeding these amounts he is required to pay are being incurred then:

(i) Whilst the child L is at high school and the child T is at primary school, an amount that is 64% of the total of the actual school fees charged for each calendar year up to a maximum of A$16,000;

(ii) Whilst the children are both attending high school, an amount that is 64% of the total of the actual school fees charged for each calendar year up to a maximum of A$20,000;

(iii) Whilst only the child T is at high school, an amount that is 64% of the total of the actual school fees charged for each calendar year up to a maximum of A$10,000;

(d) Upon receipt by the father from the mother of proof that private health insurance premiums are payable, then annually, an amount that is 64% of the costs of private health insurance cover for the children at the same level of cover that the mother and father had in place for the children during their marriage;

(e) Upon receipt by the father from the mother of proof of payment by her, an amount that is 64% of any medical and dental expenses incurred for the children that are not covered by the private health insurance, such payments to be made by the father within 28 days after receipt of proof of payment.

That the annual rate of child support payable by the father under the administrative assessments for the child support periods 1 July 2014 to 31 December 2014, 1 January 2015 to 31 December 2015 and any future periods is not to be reduced by the child support ordered to be paid by the father pursuant to order (2) hereof.

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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