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Ryan & Janosi

Ryan & Janosi

Case [2011] FMCAfam 774 21 July 2011

Jurisdiction

Res Judicata

Parenting Arrangements

Substantial Change in Circumstances

Family Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

RYAN & JANOSI

[2011] FMCAfam 774

FAMILY LAW – Rice & Asplund test – parental responsibility – schooling – relevance of International Law – relevance of social science.

Family Law Act 1975, ss.4, 60CA, 65DAA, 61DA, 65DAC, 65E, 65CA, 60B
Child Support (Registration and Collection) Act 1988
Federal Magistrates Act 1999, s.17A
Evidence Act 1995, s.114

Rice & Asplund [1979] FLC 90-725
U & U (2002) 211 CLR 238
Re G: Children’s Schooling (2000) FLC 93-025
Kelly & Kelly [2002] FamCA 379
AIF & AIS (1999) 199 CLR 160
Cowling & Cowling [1998] FamCA 19
Griffiths & Griffiths (1981) FLC 91-064
Cilento & Cilento (1980) FLC 90-847
Goode & Goode (2006) FLCA 93-286
Marvel & Marvel [2010] FamCAFC 101
Minister of Immigration & Teoh (1995) 183 CLR 273
Mabo v Queensland [1988] HCA 69
B & B & Minister of Immigration and Multicultural & Indigenous Affairs [2003] FamCA 621
Gilshannon & Giles [2008] FamCAFC 31
R & BH [2006] FamCA 919
F & B (2003) FamCA 596
Houston & Sedorkin (1979) FLC 90-699
King & Finneran [2001] FamCA 344
D & Y (1995) FLC 92-501
SPS & PLS [2008] FamCAFC 16

Applicant:

MR RYAN

Respondent:

MS JANOSI

File Number:

PAC 442 of 2008

Judgment of:

Harman FM

Hearing date:

21 July 2011

Date of Last Submission:

21 July 2011

Delivered at:

Parramatta

Delivered on:

21 July 2011

REPRESENTATION

Solicitors for the Applicant:

Benetatos White

ORDERS

In accordance with paragraphs 1 to 6 of the father’s amended application, filed 28 April 2011.
I note Mr Ryan’s indication to the Court that he does not propose to make any application to the Child Support Agency, under the Child Support (Registration Collection) Act 1988, or otherwise, for any credit, variation or departure of any administrative assessment of child support in force from time to time, based upon his assumption of responsibility for payment of [X] and [Y]’s school and pre-school fees.
I declare that I am not satisfied that there has been any substantial and significant change in circumstances, referable to [X] and [Y]’s parenting arrangements, or care, welfare and development, sufficient to warrant a further litigation of parenting issues between their parents at this time.
I dismiss all outstanding applications and responses and remove all issues from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment under the pseudonym Ryan & Janosi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 442 of 2008

MR RYAN

Applicant

And

MS JANOSI

Respondent

REASONS FOR JUDGMENT

These are proceedings between parents of two small children
[X], born [in] 2006 and, accordingly, shortly to turn five years of age; and,
[Y], born [in] 2008.
The parties to the proceedings are [X] and [Y]’s parents, Mr Ryan, who is the applicant in these proceedings and the children’s father, and

Ms Janosi, who is the respondent in the proceedings and the children’s…

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 Ryan & Janosi

Details

AGLC: Ryan & Janosi [2011] FMCAfam 774
Case: [2011] FMCAfam 774
Decision Date: 21 July 2011

CaseChat Overview and Summary

The case of Ryan & Janosi involved the parents of two children, [X] and [Y], who were seeking a determination on their parenting arrangements. The matter was before the Family Court of Australia. The father, Mr Ryan, had filed an amended application seeking changes to the existing parenting arrangements, while the mother, Ms Janosi, responded to these applications. The court was required to determine whether there had been a substantial and significant change in circumstances warranting a further litigation of parenting issues.

The primary legal issue before the court was whether there had been a substantial and significant change in circumstances that would justify altering the existing parenting arrangements. This involved an assessment of the impact of any changes on the care, welfare, and development of the children. The court had to consider the evidence presented by both parties and determine if the changes proposed by the father would be in the best interests of the children.

The court concluded that there had not been any substantial and significant change in circumstances that warranted a further litigation of parenting issues at that time. The judge declared that they were not satisfied with the evidence presented to support a change in the existing arrangements. As a result, the court dismissed all outstanding applications and responses and removed all issues from the list of cases awaiting hearing. The judge also noted that the father had indicated he would not seek any adjustments in child support assessments based on his assumption of responsibility for the children's school and pre-school fees.

Orders

Orders of the court

In accordance with paragraphs 1 to 6 of the father’s amended application, filed 28 April 2011.

I note Mr Ryan’s indication to the Court that he does not propose to make any application to the Child Support Agency, under the Child Support (Registration Collection) Act 1988, or otherwise, for any credit, variation or departure of any administrative assessment of child support in force from time to time, based upon his assumption of responsibility for payment of [X] and [Y]’s school and pre-school fees.

I declare that I am not satisfied that there has been any substantial and significant change in circumstances, referable to [X] and [Y]’s parenting arrangements, or care, welfare and development, sufficient to warrant a further litigation of parenting issues between their parents at this time.

I dismiss all outstanding applications and responses and remove all issues from the list of cases awaiting hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Ryan & Janosi [2011] FMCAfam 774

Most Recent Citation

EGGERS & TAINE (No.2) [2015] FCCA 1413

Cases citing this decision · 3 of 3 shown

Carmody & Strauss
[2021] FCCA 2059 Para 20

…In the Mother's Case Outline, the decision of Federal Magistrate Harman (as he then was) in Ryan & Janosi [2011] FMCAfam 774 is quoted. His Honour stated that it was not the Court’s role to compare schools or make any choice by way of preference of a public school over a private school and presumably vice versa. Furt…
Picano & Walkner
[2021] FCCA 1682 Para 19

…s that the schools proposed are not prima facie satisfactory schools, thus disposing of any Ryan & Janosi [2011] FMCAfam 774 issue. The Authorities & Considerations 3.In Bilz & Breugelman [2013] FamCA 578 [81]-[83], Austin J summarised the principles governing the resolution of schooling disputes by reference to Re G…
EGGERS & TAINE (No.2)
[2015] FCCA 1413 Para 7

…Ms Murphy also referred to Ryan & Janosi[3], where Harman FM[4] held that the issue is not to compare school “league tables”. [3] [2011] FMCAfam 774 [4] as His Honour then was…

View all 3 citing cases →

Cases cited in this decision · 12 of 12 shown

Marvel & Marvel
[2010] FamCAFC 101 Para 13

…82) FLC 91-239 that were not struck down, or at least are conflicted, by post 2006 cases such as Goode & Goode (2006) FLCA 93-286 and Marvel & Marvel [2010] FamCAFC 101.…
Gilshannon & Giles
[2008] FamCAFC 31 Para 4

…ourt which, albeit decided some years ago, remains binding upon this court. If there is any doubt in that regard see, for example, Gilshannon & Giles [2008] FamCAFC 31, a decision of Warnick J sitting as the Full Court on the Family Court on appeal from a decision of a Federal Magistrate, and R & BH [2006] FamCA 919…
SPS & PLS
[2008] FamCAFC 16

…BH [2006] FamCA 919 F & B (2003) FamCA 596 Houston & Sedorkin (1979) FLC 90-699 King & Finneran [2001] FamCA 344 D & Y (1995) FLC 92-501 SPS & PLS [2008] FamCAFC 16…
R & BH
[2006] FamCA 919 Para 4

…2008] FamCAFC 31, a decision of Warnick J sitting as the Full Court on the Family Court on appeal from a decision of a Federal Magistrate, and R & BH [2006] FamCA 919 being a decision of the Full Bench of the Family Court comprising Kay, Warnick and May, a most authoritative Full Bench, and arising from a decision…
U v U
[2002] HCA 36 Para 3

…d into an order which neither party proposes would change. I hasten to add that whilst the Court is not bound by the parties’ proposals, (see U & U (2002) 211 CLR 238), I would not be satisfied in this case that the presumption could or should be displaced as neither parent has raised any complaint or criticism nor l…
King & Finneran
[2001] FamCA 344 Para 9

…Their Honours also quoted, and accepted and endorsed as their own position, the decision of Collier J of this registry in King & Finneran [2001] FamCA 344. In that case, Collier J opined as follows: The words, in any event, being the words used within the 2006 amendments to the Family Law Act and within Rice & Aspl…
AMS v AIF
[1999] HCA 26 Para 10

…hat detriment of impracticality or undue burdens will ultimately flow on to the children, in accordance with the paramountcy principle (see AIF & AIS (1999) 199 CLR 160), such considerations are largely subservient to the primacy of the child’s best interests.…
Minister for Immigration and Ethnic Affairs v Teoh
[1995] HCA 20 Para 2

…erence to the Family Law Act 1975 and as interpreted in light of the International Convention on the Rights of the Child; see Minister of Immigration (1995) 183 CLR 273 & Teoh, Mabo v Queensland [1988] HCA 69 and B & B & Minister for Immigration and Multicultural & Indigenous Affairs [2003] FamCA 621.…
Mabo v Queensland
[1988] HCA 69 Para 2

…rpreted in light of the International Convention on the Rights of the Child; see Minister of Immigration (1995) 183 CLR 273 & Teoh, Mabo v Queensland [1988] HCA 69 and B & B & Minister for Immigration and Multicultural & Indigenous Affairs [2003] FamCA 621.…
Cowling v Cowling
[1998] FAMCA 19 Para 13

…The more important and fundamental issue, however, arises from those portions of authorities such as Cowling& Cowling [1998] FamCA 19 and Griffiths & Griffiths (1981) FLC 91-064, Cilento & Cilento (1980) FLC 90-847 and Rainer & Rainer (1982) FLC 91-239 that were not struck down, or at least are conflicted, by post…
As has been observed by the Full Court in cases such as Kelly & Kelly
[2002] FAMCA 379 Para 8

…As has been observed by the Full Court in cases such as Kelly & Kelly [2002] FamCA 379, as well as perhaps the most oft quoted authority with respect to children’s schooling, Re G: Children’s Schooling (2000) FLC 93‑025, and to quote the Full Court in that, in the latter decision: Although there is no legal presump…
[2003] FAMCA 621
[2003] FAMCA 621 Para 2

…of Immigration (1995) 183 CLR 273 & Teoh, Mabo v Queensland [1988] HCA 69 and B & B & Minister for Immigration and Multicultural & Indigenous Affairs [2003] FamCA 621.…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
4, 60B, 60CA, 61DA, 65CA, 65DAA, 65DAC,... 9 mentions (from Para 2)
Evidence Act 1995 (Cth)
114 2 mentions (from Para 2)
Federal Magistrates Act 1999 (Cth)
17A 2 mentions (from Para 10)
Child Support (Registration and Collection) Act 1988 (Cth)
1 mention (from Para 9)