PARSONS & KEMP - [2014] FamCA 1091

FAMILY COURT OF AUSTRALIA

PARSONS & KEMP

[2014] FamCA 1091

FAMILY LAW – CHILDREN – Children have lived primarily with mother since birth – husband seeks relatively rapid change of parenting arrangements to equal time – history of conflict between the parties – agreement that the children should spend unsupervised time with the parties but issues of time and communication are unresolved.

FAMILY LAW – CHILD SUPPORT – Administrative assessment – application under s 116 for departure of administrative assessment in the context of parenting proceedings – threshold question – whether in circumstances the Court should exercise power under s 116 and make departure orders.

Family Law Act 1975 (Cth)
Child Support (Child Support Assessment Act) 1989 (Cth)

Kemp & Parsons [2014] FamCA 865
Harris & Ellis [2011] FamCAFC 90
Best & Best [1993] FLC 92-418

APPLICANT:

Mr Parsons

RESPONDENT:

Ms Kemp

FILE NUMBER:

LNC

628

2012

DATE DELIVERED:

8 December 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

13, 14 & 15 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roger Murray

SOLICITOR FOR THE APPLICANT:

Murray & Associates

COUNSEL FOR THE RESPONDENT:

Mrs Kate Mooney

SOLICITOR FOR THE RESPONDENT:

Wallace Wilkinson & Webster

PARENTING ORDERS

All previous parenting orders in respect of the children are discharged.

Parental Responsibility

BY CONSENT Mr Parsons (‘the father’) and Ms Kemp (‘the mother’) have equal shared parental responsibility for the three children of their relationship namely:-
B Kemp-Parsons born … 2006 (‘B’);
W Kemp-Parsons born … 2008 (‘W’); and
L Kemp-Parsons born … 2010 (‘L’)
(collectively called ‘the children’).
The father and mother shall:-
(a)keep the other party reasonably and properly informed of all important issues with regard to the health, welfare and education of the children;
(b)from the commencement of the 2015 school year, enrol B and L at the X Private School; and
(c)from the commencement of the 2016 school year, enrol W at the Y Private School.

Residence

The children shall live with the mother.

Spend time with

Except as otherwise agreed in writing between the parents the children shall spend time with the father as is set out below:-
(a)In relation to school term time on a two week cycle as follows:-
(i)week 1 - from after school Friday until the commencement of school on Monday in 2015 (or Tuesday if the Monday is a public holiday or a student free day) and Tuesday from 2016;
(ii)week 2 - from after school Thursday until the commencement of school on Friday.
(b)Subject to the orders regarding travel to the United States of America; the Christmas/New Year school holiday time as follows:-
(i)for 2014 and each alternate year afterwards –
1.for the period from the end of school term until 25 December, equal days between the mother and the father, with the father having the first half of that period and the mother the second half up to 3.00 pm on 25 December; then
2.with the father from 3.00pm on 25 December until…

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 PARSONS & KEMP

Details

AGLC: PARSONS & KEMP [2014] FamCA 1091
Case: [2014] FamCA 1091
Decision Date: 8 December 2014

CaseChat Overview and Summary

In *Parsons & Kemp*, Benjamin J of the Family Court of Australia considered a dispute between the parents concerning parenting arrangements for their children and an application to depart from an administrative child support assessment. The children had lived primarily with the mother since birth, and the husband sought a relatively rapid change to equal time arrangements. While both parties agreed that the children should spend unsupervised time with each parent, significant disagreements persisted regarding the quantum of time and communication protocols.

The central legal issues before the Court were twofold. Firstly, the Court was required to determine the most appropriate parenting arrangements for the children, considering their best interests. Secondly, the Court had to address the husband's application under section 116 of the *Child Support (Assessment) Act 1989* (Cth) for a departure from the administrative child support assessment, and whether the circumstances warranted the exercise of the Court's power to make departure orders.

In relation to the parenting arrangements, Benjamin J applied the principles enshrined in the *Family Law Act 1975* (Cth), focusing on the paramount consideration of the children's best interests. The Court weighed the existing arrangements against the proposed changes, taking into account the history of conflict between the parties and the need for stability and certainty for the children. Regarding the child support application, the Court considered the threshold question under section 116, assessing whether the circumstances justified a departure from the administrative assessment, particularly in light of the ongoing parenting proceedings and the potential impact on the children.

Orders