LISTER & SEWELL - [2016] FCCA 2215

FEDERAL CIRCUIT COURT OF AUSTRALIA

LISTER & SEWELL

[2016] FCCA 2215

Catchwords:
FAMILY LAW – Children – Lack of sufficient communication and cooperation to sustain an equal time arrangement – final orders for time arrangements varied.

CHILD SUPPORT – Set aside binding child support agreement – duress – exceptional circumstances – application dismissed.

Legislation:

Family Law Act 1975 ss.4AB, 61DA, 65DAA(1)

Child Support (Assessment) Act 1989 ss.80C, 136(2)

Cases cited:
Rice & Asplund [1979] FLC 90-725
Goode & Goode [2006] FamCa 1346
In the Marriage of Kohl (1981) 7 Fam LR 591 at 598
In the Marriage of S (1980) 5 Fam LR 831 at 839
In the Marriage of Pelerman (2000) FLC 93-037 at 87,589
Keane & Keane & Ors [2013] FamCA 332
Crescendo Management v Westpac Banking Corp (1998) 19 NSWLR 40

Applicant:

MS LISTER

Respondent:

MR SEWELL

File Number:

SYC 292 of 2013

Judgment of:

Judge Boyle

Hearing dates:

19 and 20 May 2016

Date of Last Submission:

20 May 2016

Delivered at:

Sydney

Delivered on:

26 August 2016

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Counsel for the Respondent:

Ms Snelling

Solicitors for the Respondent:	Suzanne Wyman & Associates
Counsel for the Independent Children’s Lawyer:	Mr Fermanis

Solicitors for the Independent Children’s Lawyer:

Claremont Legal

ORDERS

All previous parenting orders be discharged.
The parents shall have equal shared parental responsibility for the children, X (born on (omitted) 2007), Y (born (omitted) 2009) and Z (born (omitted) 2009) (“the Children”).
The Children shall live with the Mother.
The Children shall spend time with the Father as follows:
(a)During school terms:
(i)Commencing the first week of each school term, each alternate weekend from the conclusion of school on Friday, or 3pm if it is not a school day, until the commencement of school on Monday, or 3pm if it is not a school day.
(ii)Commencing the second week of each school term and each alternate week thereafter, from the conclusion of school on Wednesday, or 3pm if it is not a school day, until the commencement of school on Friday, or 3pm if it is not a school day.
(b)During school holidays for one half of all school holiday periods as agreed in writing, and failing agreement as follows:
(i)In even numbered years, from the conclusion of school on the last day of the school term until 9am on the Sunday at the midpoint of that school holiday period; and
(ii)In odd numbered years, from 9am on the Sunday at the midpoint of the school holiday until the day before school term resumes.
(c)During the weekend on which Father’s Day falls, if the Children are not otherwise spending time with the Father, from 6pm on the Saturday preceding Father’s Day until the commencement of school the Monday following Father’s Day.
(d)From 3pm on 24 December 2016 until 3pm on 25 December 2016 and each alternate year thereafter.
(e)From 3pm on 25 December 2017 until 3pm on 26 December 2017 and each alternate year thereafter.

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.

Continue reading LISTER & SEWELL

Details

AGLC: Lister and Sewell [2016] FCCA 2215
Case: [2016] FCCA 2215
Decision Date: 26 August 2016

CaseChat Overview and Summary

In the matter of Lister & Sewell, Judge Boyle of the Family Court of Australia considered applications concerning the parenting arrangements for three children and an application to set aside a binding child support agreement. The primary dispute revolved around the efficacy of the existing equal time arrangement for the children, which the court found was not being sustained due to a lack of communication and cooperation between the parents. The father also sought to set aside a binding child support agreement.

The court was required to determine whether the existing parenting orders should be varied, and if so, what new arrangements would be in the best interests of the children. Additionally, the court had to consider the father's application to set aside the binding child support agreement, specifically whether duress or exceptional circumstances warranted such an order.

Judge Boyle reasoned that the existing equal time arrangement was not functioning effectively due to the parents' inability to communicate and cooperate. Consequently, the court discharged all previous parenting orders and made new orders establishing equal shared parental responsibility. The children were ordered to live with the Mother, with the Father to have specific, detailed time with them during school terms, school holidays, and on particular public holidays. The court also made orders regarding communication between the parents and the children, information sharing, and injunctions restraining abusive conduct in the presence of the children. The father's application to set aside the binding child support agreement was dismissed, as the court found no evidence of duress or exceptional circumstances to justify such an action.

Orders

Orders of the court

All previous parenting orders be discharged.

The parents shall have equal shared parental responsibility for the children, X (born on (omitted) 2007), Y (born (omitted) 2009) and Z (born (omitted) 2009) (“the Children”).

The Children shall live with the Mother.

The Children shall spend time with the Father as follows:

(a) During school terms:

(i) Commencing the first week of each school term, each alternate weekend from the conclusion of school on Friday, or 3pm if it is not a school day, until the commencement of school on Monday, or 3pm if it is not a school day.

(ii) Commencing the second week of each school term and each alternate week thereafter, from the conclusion of school on Wednesday, or 3pm if it is not a school day, until the commencement of school on Friday, or 3pm if it is not a school day.

(b) During school holidays for one half of all school holiday periods as agreed in writing, and failing agreement as follows:

(i) In even numbered years, from the conclusion of school on the last day of the school term until 9am on the Sunday at the midpoint of that school holiday period; and

(ii) In odd numbered years, from 9am on the Sunday at the midpoint of the school holiday until the day before school term resumes.

(c) During the weekend on which Father’s Day falls, if the Children are not otherwise spending time with the Father, from 6pm on the Saturday preceding Father’s Day until the commencement of school the Monday following Father’s Day.

(d) From 3pm on 24 December 2016 until 3pm on 25 December 2016 and each alternate year thereafter.

(e) From 3pm on 25 December 2017 until 3pm on 26 December 2017 and each alternate year thereafter.

That if the children are not otherwise with the mother during the weekend on which Mother’s Day falls, the children shall live with the mother from 6pm on the Saturday preceding Mother’s Day until the commencement of school the Monday following Mother’s Day.

That if the children are not otherwise with the mother they shall live with her from 3pm 24 December 2017 until 3pm 25 December 2017 and each alternate year thereafter.

That if the children are not otherwise with the mother they shall live with her from 3pm on 25 December 2016 until 3pm on 26 December 2016 and each alternate year thereafter

For the purposes of facilitating orders 3 to 7 above, when changeovers do not occur by way of collection or delivery to or from school, the parent with whom the children are to spend time or live with be responsible for collecting the children from the other party’s residence at the commencement of their time and the other party will collect the children at the conclusion thereof.

That the parents shall each facilitate the children communicating with the other parent by telephone, face time or skype at a time agreed during all school holiday periods, and failing agreement on Tuesdays and Fridays at 7pm.

10.

Each parent shall provide to the other parent, in a timely manner, copies of all notices received from school and details of all functions, parent teacher nights, sporting events and other activities to which parents are invited.

11.

Each parent shall keep the other parent informed about matters concerning the welfare and education of the children.

12.

Each parent keep the other parent informed about:

(a) Any medical problems or illness suffered by the Children whilst in their care;

(b) If any mediation has been prescribed for the Children;

(d) Any social, school or religious functions which the Children are to attend;

(e) Their residential address;

(f) Their telephone number.

13.

Each of the parents are hereby restrained by injunction from:

(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and

(b) Discussing these proceedings or the contents of any documents filed in these proceedings,

With or in the presence or hearing of any of the children and from permitting any other person to do so.

14.

The father’s application to set aside the Binding Child Support Agreement entered into by the parties is 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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