Roger & Page - [2007] FamCA 1113

FAMILY COURT OF AUSTRALIA

ROGER & PAGE

[2007] FamCA 1113

FAMILY LAW – CHILDREN – With whom a child lives - whether children, aged 4½ and 7, should live with both parents on an equal time basis.

FAMILY LAW – CHILD SUPPORT – claim by husband that wife is estopped from pursuing arrears of child support by virtue of a promissory estoppel

Family Law Act 1975 (Cth) ss 60B, 60CC, 60I, 61DA
Child Support (Assessment) Act (Cth)

Dylan & Dylan [2007] FamCA 842

APPLICANT:

Mr Roger

RESPONDENT:

Ms Page

FILE NUMBER:

HBF

2006

DATE DELIVERED:

20 September 2007

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

4 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Trezise

SOLICITOR FOR THE APPLICANT:

A T Legals

COUNSEL FOR THE RESPONDENT:

Mr Smith

SOLICITOR FOR THE RESPONDENT:

PWB Lawyers

Orders

THAT all previous parenting orders with respect to the children are discharged.
THAT the wife and the husband have equal shared parental responsibility for T … born … December 1999 (“[T]”) and A … born … November 2002 (“[A]”) (called collectively “the children”).
THAT the children live with the wife, except as is otherwise provided in either these orders or agreed in writing between the husband and the wife.
THAT the children live with the husband as follows:-
(a)from after school until the Saturday (in the middle of the school holiday period) for each of the school holidays at the end of the first and second Tasmanian school, so that the children spend the first half of each of such school holiday periods with the husband and the second half with the wife;
(b)for the first half of the Easter school break in even numbered years and the second half in odd numbered years;
(c)from after school on the last day of the third term of the Tasmanian school holiday period (Christmas/New Year holiday) until 2.00pm on Christmas Day, in the even numbered years on which the Christmas Day falls;
(d)from 2.00pm on Christmas Day to 12.00 noon on the following New Years Day in odd numbered years on which the Christmas Day falls over the Christmas/New Year holiday;
(e)in years where the children live with the husband from Christmas day to New Years Day, they shall live with the husband each alternate week commencing at 10.00am on 8 January and expiring at 10.00am on 15 January and continuing each alternate week in like form for the remainder of the Christmas/New Year holiday, subject to this order. The children to be returned to live with the wife for the three days prior to commencement of the first term in each school year.
(f)If the children are living with the husband from after school to Christmas Day under these orders, they shall live with the husband from 12.00 noon on 1 January in such year until 10.00am on 8 January and continuing each alternate week in like form for the remainder of the Christmas/New Year holiday, subject to…

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: Roger & Page [2007] FamCA 1113
Case: [2007] FamCA 1113
Decision Date: 20 September 2007

CaseChat Overview and Summary

In the matter of *Roger & Page*, Benjamin J of the Family Court of Australia considered a dispute between the parents concerning the living arrangements for their two children, aged four and a half and seven. The wife sought orders regarding the children's residence, while the husband also raised a claim of promissory estoppel to prevent the wife from pursuing child support arrears.

The court was required to determine the primary issue of with whom the children should live, specifically whether an equal time arrangement between both parents was appropriate. Additionally, the court had to consider the husband's defence of promissory estoppel in relation to the wife's claim for child support arrears.

Benjamin J ordered that all previous parenting orders be discharged and that the parents have equal shared parental responsibility for the children. The children were ordered to live with the wife, with specific provisions for time spent with the husband during school holidays, public holidays, and on alternate weekends during school terms. The court also declared that child support arrears amounted to $2,102.58 and ordered the husband to pay this sum to the wife within ninety days. The court further directed that counsel for the wife forward a copy of the reasons for the orders, along with specific affidavit material, to the General Manager of the Child Support Agency.

Orders

Orders of the court

THAT all previous parenting orders with respect to the children are discharged.

THAT the wife and the husband have equal shared parental responsibility for T … born … December 1999 (“[T]”) and A … born … November 2002 (“[A]”) (called collectively “the children”).

THAT the children live with the wife, except as is otherwise provided in either these orders or agreed in writing between the husband and the wife.

THAT the children live with the husband as follows:-

(a) from after school until the Saturday (in the middle of the school holiday period) for each of the school holidays at the end of the first and second Tasmanian school, so that the children spend the first half of each of such school holiday periods with the husband and the second half with the wife;

(b) for the first half of the Easter school break in even numbered years and the second half in odd numbered years;

(c) from after school on the last day of the third term of the Tasmanian school holiday period (Christmas/New Year holiday) until 2.00pm on Christmas Day, in the even numbered years on which the Christmas Day falls;

(d) from 2.00pm on Christmas Day to 12.00 noon on the following New Years Day in odd numbered years on which the Christmas Day falls over the Christmas/New Year holiday;

(e) in years where the children live with the husband from Christmas day to New Years Day, they shall live with the husband each alternate week commencing at 10.00am on 8 January and expiring at 10.00am on 15 January and continuing each alternate week in like form for the remainder of the Christmas/New Year holiday, subject to this order. The children to be returned to live with the wife for the three days prior to commencement of the first term in each school year.

(f) If the children are living with the husband from after school to Christmas Day under these orders, they shall live with the husband from 12.00 noon on 1 January in such year until 10.00am on 8 January and continuing each alternate week in like form for the remainder of the Christmas/New Year holiday, subject to this order. The children to be returned to live with the wife for the three days prior to commencement of the first term in each school year.

(g) During school term:

i. The consent arrangements that were in place at the date of hearing shall continue for the final school term of 2007. In respect of that arrangement, I give the parties and/or the Independent Children’s Lawyer liberty to apply on 7 days notice for the purpose of putting in place formal orders for that period, if necessary.

ii. From the commencement of the 2008 school term, the children live with the husband from after school Thursday until the commencement of school the following Tuesday, each alternate week. Such times to commence the second Thursday after the start of school terms one and three and the first Thursday after the commencement of term two.

THAT in the event the children would otherwise be living with the husband on Mother’s Day, then the time the children live with the husband shall end at 5.00pm on the Saturday before Mother’s Day and recommence after school on the following Monday.

THAT in the event the children would not otherwise live with the husband on Father’s Day, they shall live with the husband from 5.00pm on the Saturday prior to Father’s Day until the commencement of school the following Monday.

THAT the children shall live with their respective parents on such parent’s birthday. If such birthday is a school day, then from after school on that day until commencement of school the next day. If such day is a weekend, public holiday or pupil free day, from 12.00 noon to 6.00 pm on that day.

THAT both parties shall independently attend the Parenting after Separation course conducted by Relationships Australia (or similar) and complete such course within 6 months from the date of these orders. Each party shall be responsible for his or her costs for attendance at such course.

THAT pursuant to s 65DA(2) and s 62B, 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 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.

10.

IT IS DECLARED THAT the arrears of child support pursuant to Child Support Assessments from the date of separation to 31 January 2007 amounts to $2,102.58.

IT IS ORDERED:

11.

THAT the husband pay to the wife such arrears within ninety (90) days from the date of this order.

12.

THAT both parties be given liberty to apply in relation to these arrears of child support.

13.

THAT this matter be removed from the list of cases requiring determination.

14.

THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

15.

I DIRECT that counsel for the wife forward to the General Manager of the Child Support Agency a copy of the reasons for these orders together with a copy of the husband’s affidavit sworn and filed 18 January 2007 with particular reference to annexure “B” to the affidavit and the comments made by me to that issue in these reasons. This is a direction pursuant to s 121 of the Family Law Act 1975 (Cth) (“the Act”) and the immunity created by ss 121(9) of the Act in respect of this particular disclosure extends to the wife, her counsel and the General Manager of the Child Support Agency.

IT IS CERTIFIED

16.

THAT pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend

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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