FIRTH & HALE-FORBES - [2013] FamCA 334

FAMILY COURT OF AUSTRALIA

FIRTH & HALE-FORBES

[2013] FamCA 334

FAMILY LAW – CHILDREN – Spend time with – Whether orders should be made with respect to a 15 year old child – Whether time with younger children should be in one block over a fortnight – Where parents have very different parenting styles – Where family consultant recommended that there be no significant change to youngest child’s arrangements while he is in therapy – Where change from two smaller periods to one larger period, but less time overall, is marginal for the children – Where family consultant recommended no orders be made with respect to the oldest child – Where it is not in the best interest of the youngest child to spend an extended period away from the mother – Ordered that younger children spend five days a fortnight with the father.

FAMILY LAW – APPLICATION FOR ADJOURNMENT – Whether proceedings should be adjourned to allow for a further interview with the family consultant – Where this is third round of litigation in two years – Where proceedings would be delayed for many months – Where child distressed at notion of being reinterviewed – Where reinterview may not produce any evidence to change conclusions of the family consultant – Where adjournment of proceedings not in the best interests of the children – Application dismissed.

FAMILY LAW – CHILD SUPPORT – Father’s application for a departure order – Where special circumstances not established – Application dismissed – Mother’s application for a departure order – Where mother needed to seek leave – Where mother was led to believe the father’s income was significantly less that it actually was – Where application made within reasonable time after the father’s actual income was disclosed – Leave granted – Where father’s earning capacity would result in an unjust and inequitable administrative assessment – Grounds for departure order established.

Child Support (Assessment) Act 1989 (Cth) 4, 111, 112, 117

Family Law Act 1975 (Cth)

Best & Best (1993) FLC 92-418
Dwyer & McGuire (1993) FLC 92-420
Gyselman and Gyselman (1992) FLC 92-279

APPLICANT:

Mr Firth

RESPONDENT:

Ms Hale-Forbes

FILE NUMBER:

SYC

3026

2011

DATE DELIVERED:

10 May 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

8 April - 10 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Druitt

SOLICITOR FOR THE APPLICANT:

Cameron Gillingham Boyd

COUNSEL FOR THE RESPONDENT:

Mr Cummings

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

IT IS ORDERED

That all previous orders in relation to the parenting of H born … August 1997, E born … April 2000 and B born … September 2001 be discharged.
That the parents have equal shared parental responsibility in relation to the children.
That there be no orders in relation to the child H.
That during school terms other than specifically provided in these orders the children E and B spend time with the father in the first week of each fortnight commencing on Thursday from the…

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: FIRTH & HALE-FORBES [2013] FamCA 334
Case: [2013] FamCA 334
Decision Date: 10 May 2013

CaseChat Overview and Summary

Rees J considered applications concerning the parenting arrangements for three children, H (aged 15), E (aged 12), and B (aged 10), and child support. The father sought to vary existing parenting orders and reduce child support payments, while the mother sought a departure from the standard child support assessment. The court also addressed an application for an adjournment to allow for a further interview with a family consultant.

The primary legal issues before the court were whether to make new parenting orders for the children, particularly regarding the youngest child's time with each parent, and whether to grant a departure from the standard child support assessment for either parent. The court was also required to determine if an adjournment was in the best interests of the children, given the protracted nature of the litigation and the potential distress to the children.

In relation to parenting, Rees J noted the family consultant's recommendation that no significant changes be made to the youngest child's arrangements while he was undergoing therapy, and that no orders be made concerning the eldest child, H. The court found that it was not in the best interests of the youngest child to spend an extended period away from the mother. The court dismissed the father's application for a child support departure order, finding no special circumstances. However, the mother was granted leave to seek a departure order, as she had been misled about the father's income and had made her application within a reasonable time of discovering the true extent of his earnings. The court determined that the father's earning capacity would result in an unjust and inequitable administrative assessment, thus establishing grounds for a departure order. The application for an adjournment was dismissed, as the court considered it would cause further delay and distress to the children, and was unlikely to yield new evidence.

Consequently, Rees J discharged previous parenting orders, established equal shared parental responsibility, and made no orders regarding H. For E and B, the court ordered a specific schedule for time with the father during school terms and holidays, including provisions for birthdays and special days. The father's application to reduce child support to nil was dismissed, and a departure order was made varying the child support payable by the father for specific periods.

Orders

Orders of the court

IT IS ORDERED

That all previous orders in relation to the parenting of H born … August 1997, E born … April 2000 and B born … September 2001 be discharged.

That the parents have equal shared parental responsibility in relation to the children.

That there be no orders in relation to the child H.

That during school terms other than specifically provided in these orders the children E and B spend time with the father in the first week of each fortnight commencing on Thursday from the conclusion of school until the beginning of school on Tuesday, commencing on the Thursday immediately following the date of these Orders.

That during school holiday periods, and except as provided in these orders, E and B live with each of the mother and the father for half of each school holiday period and unless otherwise agreed in writing the children live with the mother for the first half of each school holiday period in odd numbered years and for the second half of each school holiday period in even numbered years.

That E and B shall spend time with the mother from 6 pm on the evening before each of Mothers’ Day and the mother’s birthday until 6 pm on each of Mothers’ Day and the mother’s birthday.

That E and B shall spend time with the father from 6 pm on the evening before each of Fathers’ Day and the father’s birthday until 6 pm on each of Fathers’ Day and the father’s birthday.

That in the event that the birthdays of D and F fall on days when the children are living with the mother, E and B shall spend time with the father for five hours if the day is one on which the children do not attend school, or for three hours if the day is one where the children are attending school.

That if the children have lived with the father for the first half of a school holiday period then the father’s term time with the children shall commence on the Thursday of the first week of term.

10.

That if the children have lived with the father for the last half of a school holiday then his time with the children shall commence on the second Thursday of the school term.

11.

That the application of the father to reduce periodic payments of child support to nil be dismissed.

12.

That pursuant to section 118(1) of the Child Support (Assessment) Act 1989 (Cth), the rate of child support payable by the father be varied as follows:

(a) for the child support period commencing 1 July 2011 and finishing 30 June 2012, a lump sum of $50,286.60;

(b) for the child support period commencing 1 June 2012 and finishing on 30 June 2013 and each year thereafter, the annual rate be $343.33 per week per child.

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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