RYDER & BONHAM - [2017] FamCA 979

FAMILY COURT OF AUSTRALIA

RYDER & BONHAM

[2017] FamCA 979

FAMILY LAW – CHILDREN – variation of interim parenting orders – application for interim costs order – basis for a dollar for dollar order – application for non-periodic child support – voluntary payments by a party as a factor in determining it is not just and equitable to make order under the Child Support (Assessment) Act 1989 s 123

Kartal & Dutsanee [2016] FamCA 1158
Moroni & Moroni [2014] FamCA 664
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578

Selena & Montez and Ors [2017] FamCA 583

Zschokke & Zschokke (1996) FLC 92-693

Child Support (Assessment) Act 1989 (Cth) ss 117, 123, 124, 125
Family Law Act 1975 (Cth) ss 60CC, 117
Family Law Rules 2004 (Cth) r 15.51

APPLICANT:

Ms Ryder

RESPONDENT:

Mr Bonham

FILE NUMBER:	CAC	1571	of		2017
DATE DELIVERED:	1 December 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

8 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Miller

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton, SC

SOLICITOR FOR THE RESPONDENT:

Pigdon Norgate Family Lawyers

Orders

That the Husband and the Wife have equal shared parental responsibility for the children B, born … 2006, and C, born … 2009 (hereinafter referred to as “the children”).
That the children shall live with the Wife.
That the children shall spend time with the Husband as follows:
a.During school term on a fortnightly cycle as follows:
i.In week one from the conclusion of school Thursday until the commencement of school on Friday.
ii.In week two, from the conclusion of school Friday until the commencement of school on Monday.
b.That for the purpose of Order 3.a above, in determining when the two (2) week cycles begins in each new school term, if in the previous school term the cycle ended with the children spending the final weekend with the Husband (“week 1”) then in the following term the cycle shall commence with the children spending the first weekend with the Wife, and vice versa.
c.During each School Holiday period following the first, second and third School Terms for up to 7 days as agreed and, failing agreement:
i.In years ending in an odd number, for the first half of the School Holiday period, such period to commence at 9am on the first day following the conclusion of the School Term and to conclude at 12.30pm on the Saturday closest to the midpoint of the middle day of the School Holiday period; and
ii.In years ending in an even number, for the second half of the School Holiday period, such period to commence at 12.30pm on the Saturday closest to the midpoint of the middle day of the School Holiday period and conclude at 5pm on the last day prior to the commencement of the School Term.
d.During the School Holiday period following the fourth School Term (December/January School Holiday period) for up to 2 consecutive weeks as…

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 RYDER & BONHAM

Details

AGLC: RYDER & BONHAM [2017] FamCA 979
Case: [2017] FamCA 979
Decision Date: 1 December 2017

CaseChat Overview and Summary

In *Ryder & Bonham*, Gill J determined parenting arrangements for the parties' two children and made orders concerning property and costs. The dispute involved an application for interim parenting orders, an application for an interim costs order, and an application for non-periodic child support.

The court was required to determine the most appropriate interim parenting orders for the children, including issues of equal shared parental responsibility, living arrangements, and time spent with each parent. Additionally, the court considered whether it was just and equitable to make an order for non-periodic child support under section 123 of the *Child Support (Assessment) Act 1989*, taking into account voluntary payments made by a party. The court also addressed an application for an interim costs order, with specific provisions for dollar-for-dollar payments.

Gill J made orders for equal shared parental responsibility, with the children to live with the Wife and spend time with the Husband on a defined fortnightly cycle during school terms, and for specified periods during school holidays. The court also made orders regarding communication between the children and each parent, medical emergencies, and preventing denigration of a party. Regarding property, the Husband was ordered to pay mortgage payments and associated costs for two properties and for a vehicle pending further order. Crucially, the court made detailed orders concerning legal costs, requiring notification of payments into and out of lawyers' trust accounts, and mandating a dollar-for-dollar payment by the Husband to the Wife's lawyers if his legal costs exceeded $65,000. The matter was adjourned.

Orders

Orders of the court

That the Husband and the Wife have equal shared parental responsibility for the children B, born … 2006, and C, born … 2009 (hereinafter referred to as “the children”).

That the children shall live with the Wife.

That the children shall spend time with the Husband as follows:

a. During school term on a fortnightly cycle as follows:

i. In week one from the conclusion of school Thursday until the commencement of school on Friday.

ii. In week two, from the conclusion of school Friday until the commencement of school on Monday.

b. That for the purpose of Order 3.a above, in determining when the two (2) week cycles begins in each new school term, if in the previous school term the cycle ended with the children spending the final weekend with the Husband (“week 1”) then in the following term the cycle shall commence with the children spending the first weekend with the Wife, and vice versa.

c. During each School Holiday period following the first, second and third School Terms for up to 7 days as agreed and, failing agreement:

i. In years ending in an odd number, for the first half of the School Holiday period, such period to commence at 9am on the first day following the conclusion of the School Term and to conclude at 12.30pm on the Saturday closest to the midpoint of the middle day of the School Holiday period; and

ii. In years ending in an even number, for the second half of the School Holiday period, such period to commence at 12.30pm on the Saturday closest to the midpoint of the middle day of the School Holiday period and conclude at 5pm on the last day prior to the commencement of the School Term.

d. During the School Holiday period following the fourth School Term (December/January School Holiday period) for up to 2 consecutive weeks as agreed and, failing agreement:

i. In years ending in an odd number, from 9am on the first day following the conclusion of the School Term to 12.30pm 14 days after that day, including Christmas Day; and

ii. In years ending in an even number, from 9am on 1 January to 12.30pm on 15 January; and

iii. As otherwise agreed between the parties from time to time.

The Children communicate with each party at all reasonable times when they are not in that party’s care by telephone, mobile, Skype or any other internet based video link up as agreed and, failing agreement, for a period of up to 20 minutes at 6.30pm at least each third evening.

Each party will use their best endeavours to ensure that the Children communicate with each party pursuant to Order (4).

Each party will provide to the other party their mobile and landline number and will give the Children assess to their mobile phone and landline so that the Children are able to communicate with each party pursuant to Order (4).

If there is any medical emergency involving the Children, including but not limited to serious illness, accident or hospitalisation, the party with the care of the Children must:

a. immediately contact the other party; and

b. as soon as practicable, provide the other party all documentation and information in their possession regarding the incident.

Each party is retrained from doing any act or thing, or causing any other person to do any act or thing, that has as its intention or effect the denigration of the other party or that party’s family within the presence or hearing of the Children or any of them.

That the Wife and Husband are hereby restrained from causing the children to reside more than one hundred (100) kilometres from the D Town area without obtaining the written consent of the other party.

10.

That for the purpose of care of the children save when the parties collect and deliver the children from and to school, the party who is taking possession of the children will collect the children from the other party.

Property

11.

Pending further Order, the Husband pay all mortgage payments of the D Town Property and pay all mortgage payments, taxes, rates and utilities of the E Town Property and indemnify, and keep indemnified, the Wife with respect to same.

12.

Pending further Order, the Husband pay for the Ford Ranger and all repayments for the Ford lease as when they fall due and indemnify, and keep indemnified, the Wife with respect to same.

13.

In relation to the current proceedings before the Family Court of Australia, each party is to instruct their lawyers that:

(a) On monies being deposited into their lawyer’s trust account by or on behalf of the party; and

(b) On accounts from their lawyers being paid by or on behalf of the party; and

(c) On the payment of disbursements by or on behalf of the party the lawyer for the party is to forthwith notify the lawyer for the other party of:

(i) The deposit or payment; and

(ii) The amount of the deposit or payment; and

(iii) The identity of the payee.

14.

In the event that the husband’s payments from the point of first engagement of his lawyers as described in 14 (a), (b) and (c) cumulatively exceed $65,000, then on making any further payment as described in 14 (a), (b) and (c), the husband is, within 48 hours, to make a payment in the same sum into the trust account for the lawyers for the wife.

15.

The wife is restrained from using the funds deposited pursuant to Order 14 for any purpose other than the current Family Court of Australia proceedings.

IT IS FURTHER ORDERED THAT

16.

The matter is adjourned to the Registrar’s list to a date to be fixed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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