FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LINCOLN & RYAN | [2011] FMCAfam 841 |
| CHILD SUPPORT – Whether agreement entered into in September 2007 should be set aside – whether departure order should be made – meaning of exceptional circumstances – capacity of either party to pay – whether child support agreement should be varied. FAMILY LAW – Parenting – whether final parenting orders made by consent in September 2007 should be varied – consideration of Rice & Asplund principles. |
| Family Law Act 1975, ss.60CA, 60B, s.60B(1)(a) and (b), 60CC, 60CC(2)(a)–(b), 60CC(3)(a)-(l), 60CC(4), 61DA, 61DA(4), 65DAA(1) Child Support (Assessment) Act 1989, ss.95, 111, 117(1), 117(2)(b)(ii), 117(2)(c)(ia), 118, 136(2), 136(2)(d) Child Support Legislation Amendment (Reforms of the Child Support Scheme – New Formula and Other Measures) Act 2006 |
| Daley & Daley [2009] FMCAfam 398 Gallup & Gallup [2009] FMCAfam 839 In the Marriage of Sandrk (1991) 15 FamLR 197 Neville & Neville (2010) FLC 98-055; [2010] FMCAfam 1162 Rice and Asplund (1979) FLC 90-723 SPS v PLS [2008] FamCAFC 16 Venson & Venson (No.2) [2010] FamCA 963 Zabaneh, In the Marriage of (1986) 11 Fam LR 167l; FLC 91-766 |
| Applicant: | MS LINCOLN (FORMERLY RYAN) |
| Respondent: | MR RYAN |
| File Number: | MLC 11245 of 2007 |
| Judgment of: | Whelan FM |
| Hearing dates: | 16 & 17 February 2011, 9 March 2011 |
| Date of Last Submission: | 12 April 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 18 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stoikovska |
| Solicitors for the Applicant: | Kennedy Partners |
| Counsel for the Respondent: | Mr Cole |
| Solicitors for the Respondent: | Monash Oakleigh Legal Service |
ORDERS
PARENTING
Paragraphs 1 to 9 (inclusive) of the orders made by the Federal Magistrates Court of Australia on 12 September 2007 be discharged.
The father and the mother have equal shared parental responsibility for the children of the marriage [X] born [in] 1997 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 2002 (“[Z]”) (collectively “the children”).
Each party have parental responsibility for the making of decisions concerning the day-to-day care, welfare and development of the children while the children or any one of them are in their respective care.
The children live with the father from:
(a)In each alternate week from 6.00pm on the Monday until 6.00pm on the following Monday pursuant to the current parenting arrangements; and
(b)As otherwise agreed between the parties.
The children live with the mother at all other times.
The father spend time with the children during school holidays as follows:
(a)For one half of all school term holidays as may be agreed between the parties and in default of agreement for the first half of each of the said school term holidays in 2012 and in each alternate year thereafter, and for the second half of the said school term holidays in 2011 and in each alternate year thereafter.
(b)During the long Christmas school holidays:
(i)Subject only to sub-paragraphs (6)(b)(ii) – (6)(b)(vi), on a week about basis during the said holidays, and for this purpose, the said school holidays shall be deemed to commence…
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- LINCOLN & RYAN [2011] FMCAfam 841
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- [2011] FMCAfam 841
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CaseChat Overview and Summary
The court examined the meaning of "exceptional circumstances" as outlined in the relevant statutes and case law, which typically involves unforeseen events or significant changes in circumstances that were not contemplated at the time the agreement was made. The court also assessed the capacity of each party to pay, considering factors such as income, expenses, and other financial obligations. The court applied the principles set out in Rice & Asplund, focusing on the best interests of the children and the need for flexibility in parenting orders.
After careful consideration, the court decided that the parenting orders made by consent in September 2007 should be varied to reflect the current circumstances and needs of the children. The court concluded that the existing child support agreement should not be set aside, but a departure order should be made to reflect the changed financial situation of the father. The court found that the father's financial situation had indeed changed significantly, which qualified as an exceptional circumstance. Consequently, the court varied the parenting orders to provide for equal shared parental responsibility and set out detailed arrangements for the children's time with each parent, including specific provisions for school holiday periods and special occasions such as birthdays and public holidays.
In summary, the court varied the parenting orders to better suit the current circumstances, while maintaining the child support agreement with a departure order to reflect the father's changed financial situation. The final orders included detailed provisions for the children's care, welfare, and development, ensuring their best interests were met.
Orders
Orders of the court
PARENTING
1.
Paragraphs 1 to 9 (inclusive) of the orders made by the Federal Magistrates Court of Australia on 12 September 2007 be discharged.
2.
The father and the mother have equal shared parental responsibility for the children of the marriage [X] born [in] 1997 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 2002 (“[Z]”) (collectively “the children”).
3.
Each party have parental responsibility for the making of decisions concerning the day-to-day care, welfare and development of the children while the children or any one of them are in their respective care.
4.
The children live with the father from:
(a) In each alternate week from 6.00pm on the Monday until 6.00pm on the following Monday pursuant to the current parenting arrangements; and
(b) As otherwise agreed between the parties.
5.
The children live with the mother at all other times.
6.
The father spend time with the children during school holidays as follows:
(a) For one half of all school term holidays as may be agreed between the parties and in default of agreement for the first half of each of the said school term holidays in 2012 and in each alternate year thereafter, and for the second half of the said school term holidays in 2011 and in each alternate year thereafter.
(b) During the long Christmas school holidays:
(i) Subject only to sub-paragraphs (6)(b)(ii) – (6)(b)(vi), on a week about basis during the said holidays, and for this purpose, the said school holidays shall be deemed to commence at 10.00am on the day following the last day of the school term and to conclude at 10.00am on the day prior to the school year resuming, and for the purposes of this order, the wife shall have the first week of the said holidays.
(ii) Notwithstanding any other provisions in these orders and save for any agreement between the parties to the contrary, the children shall be in the care of the wife during the following periods:
A. From 4.00pm on Christmas Day in 2012, and in each alternate year thereafter, until 4.00pm on 8 January in 2013 and in each alternate year thereafter; and
B. Between 4.00pm on 8 January 2012 and 4.00pm on 22 January 2012 and in each alternate year thereafter.
(iii) Notwithstanding any other provisions in these orders and save for any agreement between the parties to the contrary, the children shall be in the care of the husband during the following periods:
A. Between 4.00pm on Christmas Day in 2011, and in each alternate year thereafter, until 4.00pm on 8 January 2012 and in each alternate year thereafter; and
B. From 4.00pm on 8 January 2013 until 4.00pm on 22 January in 2013, and in each alternate year thereafter.
(iv) Notwithstanding any provisions in these orders and save for any agreement between the parties to the contrary, the children shall be in the care of the husband from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in 2012 and in each alternative year thereafter.
(v) Notwithstanding any other provisions in these orders and save for any agreement between the parties to the contrary, the children shall be in the care of the wife from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in 2011 and in each alternative year thereafter.
(vi) At any other times as may be agreed between the parties.
7.
The mother spend time with the children as follows:
(a) On Mother’s Day between 10.00am and 5.00pm, or as otherwise agreed, if the children are not otherwise spending time with her; and
(b) On the mother’s birthday between after school and 7.30pm if the birthday falls on a weekday that the children would not otherwise be spending time with her or between 10.00am and 5.00pm if the birthday falls on a weekend that the children would not otherwise be spending time with her.
8.
The father spend time with the children as follows:
(a) On Father’s Day between 10.00am and 5.00pm, or as otherwise agreed, if the children are not otherwise spending time with him; and
(b) On the father’s birthday between after school and 7.30pm if the birthday falls on a weekday that the children would not otherwise be spending time with him or between 10.00am and 5.00pm if the birthday falls on a weekend that the children would not otherwise be spending time with him.
9.
The parent who is not otherwise spending time with the children on their birthdays is to spend time with the children as follows:
(a) From after school until 6.30pm if the child’s birthday falls on a weekday; or
(b) From 10.00am to 1.00pm if the child’s birthday falls on a weekend; or
(c) As otherwise agreed.
10.
Each of the parties shall facilitate any reasonable request of any one of the children or the other party to communicate by telephone or email with the other party when the children or any one of them are in the care of the first party.
11.
Subject to paragraph (14) herein, each party shall advise the other by email as and when is necessary to do so of any matters relating to the children’s health, education, and other child welfare issues, while the children or any one of them are in the care of the other party.
12.
Each party shall ensure that the children or any one of them attends their existing and compulsory extracurricular activities, or any future extracurricular activities which the parties agree in writing that the children should engage in, at times when the children or any one of them are in the care of that party.
13.
Each party do all such acts and things and sign all such documents as may be necessary to permit each of the parties to:
(a) Obtain from any school or educational institution attended by any one of the children copies of their school reports, newsletters and like communications normally sent to parents;
(b) To enable each of the parties to attend parent/teacher nights at any school or educational institution attended by any one of the children; and
(c) To enable either of the parties to attend any prize night, sporting event, or extracurricular activity engaged in by any one of the children.
14.
Each party shall as soon as practicable advise the other party of any serious health or medical issue affecting any one of the children while that child is in the care of the first party.
15.
Each party do all such acts and things and sign all such documents as to enable each of the parties to communicate with any medical practitioners or health professional who has been or who will be providing treatment to any one of the children.
16.
Each party is restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other or the other’s family members to or in the presence or hearing of the children, and from permitting any other person to do so.
17.
Within fourteen (14) days of the making of these orders, each party do all such acts and things and sign all such documents as may be necessary to obtain a passport for each of the children, with such passports to remain in the possession of the mother subject only to the terms of these orders.
18.
Either party shall be at liberty to travel with the children overseas during a period of time that the children are in the care of that party during school holiday periods, upon the condition that:
(a) The party proposing to travel with the children provides the other party in writing not less than thirty (30) days notice of his or her intention to travel; and
(b) The party proposing to travel provides to the other party not less than thirty (30) days prior to the proposed departure, and in writing, a travel itinerary and contract details for the travelling party and the children while they are overseas.
19.
To facilitate overseas travel pursuant to the terms of these Orders:
(a) The mother shall ordinarily retain the passports of the children.
(b) If the father is proposing to travel with the children, the mother will comply with any reasonable request by the father to have the passports for the sake of obtaining visas or to engage in the said overseas travel.
(c) Within seven (7) days of the father returning with the children to Australia, the father shall return the passports for each of the children to the mother.
20.
Pursuant of section 13C of the Family Law Act 1975 the mother and the father:
(a) Attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry;
(b) Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c) Pay and otherwise be responsible for all costs associated with the Program; and
(d) Provide an appropriate certificate of completion of the program to the other parties or their solicitors.
CHILD SUPPORT
21.
Leave be granted under s.111 of the Child Support (Assessment) Act 1989 to the father to seek a variation under s.118 of his child support obligations for the financial year 2006-2007.
22.
For the financial year of 2006 – 2007, the father’s taxable income be assessed at $37,780.00.
23.
The father’s representatives serve a copy of these Orders on the Child Support Agency as soon as practicable.
24.
All other applications be dismissed.
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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