MARTEL & BILSON - [2017] FCCA 2875

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARTEL & BILSON

[2017] FCCA 2875

Catchwords:

FAMILY LAW – Parenting – final orders made in 2015 – changed circumstances – whether presumption of equal shared parental responsibility rebutted – amount of time spent with the father – children’s wishes given weight – mother and ICL seek a sole parental responsibility order.

CHILD SUPPORT – Application for a departure order – s.117 Child Support (Assessment) Act 1989 – father’s income not disclosed – earning capacity not utilised – application granted.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss. 116, 117, 118

Family Law Act 1975, ss.60CA, 60CC, 61DA

Cases cited:

Weir v Weir (1993) FLC 92-338

Applicant:

MS MARTEL

Respondent:

MR BILSON

File Number:

MLC 1916 of 2014

Judgment of:

Judge Hartnett

Hearing dates:	29, 30, 31 May and 1 June 2017
Interim Orders:	1 June 2017
Delivered at:	Melbourne

Delivered on:

23 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Dixon SC

Solicitors for the Applicant:

Lander and Rogers

Counsel for the Respondent:

Mr Thomas

Solicitors for the Respondent:

Vasilaras & Co

Counsel for the Independent Children’s Lawyer:

Ms Mandelert

Solicitors for the Independent Children’s Lawyer:

Cathleen Corridon & Associates

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The Applicant Mother (‘the mother’) have sole parental responsibility for the children of the marriage, X (‘X’) born (omitted) 2005 and Y (‘Y’) born (omitted) 2007 (collectively, ‘the children’).
The children live with the mother.
The children spend time and communicate with the Respondent Father (‘the father’) as follows:-
(a)each second Sunday commencing 3 December 2017 from 12.00 noon until 4.00pm, the father to collect the children from the mother’s home at commencement and the mother to collect the children at conclusion from the father’s home. Neither party shall exit their vehicle at changeover and shall text the other party as to their arrival to collect the children. Neither party shall use an agent and must attend in person unless otherwise agreed between the parties; and
(b)by telephone each Wednesday at a time suitable to the children as instigated by the children and in default at 8.00pm as instigated by the father; and
(c)at such other and/or further times and by any means as the parties may agree in writing.
The father’s time with the children as set out in order 4 be suspended during:-
(a)the second term school holidays; and
(b)subject to orders 6 and 7 herein, the long summer school holidays when the children are travelling interstate or overseas, with the mother to provide to the father 28 days written notice of such travel save in the instance of the 2017/2018 long summer school holidays when the mother shall give 7 days written notice of such travel to the father.
The father is to have make up time in respect of 5(b) above as agreed between the parties in writing, such time to be spent within 4 weeks of the children’s return from interstate or overseas.
In 2017 and each alternate…

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 MARTEL & BILSON

Details

AGLC: Martel and Bilson [2017] FCCA 2875
Case: [2017] FCCA 2875
Decision Date: 23 November 2017

CaseChat Overview and Summary

In the matter of *Martel & Bilson*, heard by Judge Hartnett, the court considered applications concerning the parenting of two children, X and Y, and a related child support matter. The proceedings involved the mother, Ms Martel, and the father, Mr Bilson. The mother sought sole parental responsibility for the children, citing changed circumstances since final parenting orders were made in 2015. The Independent Children's Lawyer (ICL) also sought a sole parental responsibility order. Additionally, the mother applied for a departure order under section 117 of the *Child Support (Assessment) Act 1989* (Cth), alleging the father had not disclosed his income and had not utilised his earning capacity.

The court was required to determine whether the presumption of equal shared parental responsibility, previously ordered, should be rebutted due to changed circumstances. This involved assessing the amount of time the children spent with the father and giving appropriate weight to the children's wishes. The court also had to consider the application for a departure order concerning child support, specifically whether the father's undisclosed income and unutilised earning capacity warranted an adjustment to the assessed amount.

The court found that the presumption of equal shared parental responsibility was rebutted, leading to orders for the mother to have sole parental responsibility and for the children to live with her. The father was granted specific, limited time with the children, including supervised changeovers and communication by telephone, with provisions for holidays and special occasions. The court also granted the application for a departure order under section 117 of the *Child Support (Assessment) Act 1989* (Cth), departing from the administrative assessment and fixing the annual child support payable by the father at $15,600, indexed to the Consumer Price Index from December 2017, payable in monthly instalments. The court also made detailed orders regarding communication, notification of illness, medical treatment, school and extra-curricular activities, change of address, and an injunction restraining denigration of either party.

Orders

Orders of the court

All previous parenting orders be discharged.

The Applicant Mother (‘the mother’) have sole parental responsibility for the children of the marriage, X (‘X’) born (omitted) 2005 and Y (‘Y’) born (omitted) 2007 (collectively, ‘the children’).

The children live with the mother.

The children spend time and communicate with the Respondent Father (‘the father’) as follows:-

(a) each second Sunday commencing 3 December 2017 from 12.00 noon until 4.00pm, the father to collect the children from the mother’s home at commencement and the mother to collect the children at conclusion from the father’s home. Neither party shall exit their vehicle at changeover and shall text the other party as to their arrival to collect the children. Neither party shall use an agent and must attend in person unless otherwise agreed between the parties; and

(b) by telephone each Wednesday at a time suitable to the children as instigated by the children and in default at 8.00pm as instigated by the father; and

The father’s time with the children as set out in order 4 be suspended during:-

(a) the second term school holidays; and

(b) subject to orders 6 and 7 herein, the long summer school holidays when the children are travelling interstate or overseas, with the mother to provide to the father 28 days written notice of such travel save in the instance of the 2017/2018 long summer school holidays when the mother shall give 7 days written notice of such travel to the father.

The father is to have make up time in respect of 5(b) above as agreed between the parties in writing, such time to be spent within 4 weeks of the children’s return from interstate or overseas.

In 2017 and each alternate year thereafter, the mother is at liberty to take the children out of the Commonwealth of Australia for four weeks holiday in the long summer school holidays as notified to the father in accordance with order 5 herein.

In 2018 and each alternate year thereafter, the mother is at liberty to take the children out of the Commonwealth of Australia for four weeks holiday in the long summer school holidays from 26 December or any date thereafter as notified to the father in accordance with order 5 herein.

In the event that the children have (hobby omitted) commitments on the weekends in school term 3, the father’s time with the children as set in order 4 be suspended with the parties to use their best endeavours to arrange make up time in the week prior to or following the weekend when the time is suspended.

Notwithstanding any other orders to the contrary in these orders, the children spend time with each of their parents as follows:-

(a) on Father's Day, with the father from 9.00am until 5.00pm;

(b) on Mother's Day, with the mother from 9.00am until 5.00pm;

(d) on 23 June each year with the father, from 3.30pm until 6.30pm unless the father advises the mother in writing that he will forego this time;

(e) on 27 December of each year with the mother, from 3.30pm until 6.30pm unless the mother advises the father in writing that she will forego this time;

(f) every second Christmas Day, with the father from 10.00am to 5.00pm commencing Christmas Day 2018.

10.

The mother is at liberty to make any necessary arrangements for the children to continue ongoing therapeutic counselling with Ms L as the mother sees fit.

11.

Each party shall inform the other as soon as possible or in any event within 24 hours of any significant illness or injury sustained by either or both of the children requiring medical attention whilst in their respective care and/or as within their respective personal knowledge.

12.

The parties are to inform the other immediately if either or both of the children is hospitalised and both parents are entitled to attend any doctor or hospital at the time of treatment for the illness or injury.

13.

Both parties are permitted to liaise directly with any medical practitioners or specialists who are treating the children and these orders act as authority for same.

14.

Both parents are authorised to attend all functions normally attended by a parent at school or extra-curricular activities including but not limited to excursions, parent teacher interviews, sporting games, concerts and working bees.

15.

Both parents be authorised to receive at their own expense materials usually provided to a parent from school or extra-curricular activities including but not limited to school reports, photo order forms, newsletters and sporting fixtures.

16.

The parties immediately notify one another in the event that either of them are admitted as an in-patient to a hospital, clinic or other type of health facility.

17.

Each party is restrained by injunction from denigrating or permitting any other person to denigrate the other party to or in the presence of the children.

18.

The parties each provide the other with not less than 7 days prior written notice and particulars of any change of residential address, mobile telephone number and/or email address.

19.

Pursuant to s.118 of the Child Support (Assessment) Act 1989 (Cth) the annual rate of child support payable by the father, Mr Bilson, to the mother, Ms Martel for the children, X born (omitted) 2005 and Y born (omitted) 2007, for child support commencing 1 December 2016 and ending 1 December 2018 as determined by the administrative assessment provisions of the Child Support (Assessment) Act 1989 (Cth), be departed from and fixed hereby at $15,600 save that on and from 1 December 2017 such sum shall be indexed to the Consumer Price Index. Such annual amount is to be paid in monthly instalments into a bank account nominated by the mother on the first day of each month.

20.

The amounts payable by the father pursuant to these orders are to be credited to 100 per cent of the annual rate of child support payable by him under all and any administrative assessments for the relevant period.

THE COURT NOTES THAT:

A. Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the 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.

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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