FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALTON & JANOS | [2017] FCCA 3222 |
| Catchwords: FAMILY LAW – Parenting – relocation – disproportionate use of resources of parties and the Court in dispute of relatively narrow compass – doubts about the Mother’s genuineness to promote the child’s relationship with the Father – principal issues relate to intense but unproductive communication between the parties – Mother’s conduct manipulative regarding the Father’s time with the child – restraint on Mother relocating to (omitted) New South Wales for a period of time due to Court’s concern about the Mother promoting and facilitating the child’s time with the Father – facilitated monthly parenting meeting ordered – property issues also following a short marriage – modest pool – Father’s income significantly greater than the Mother – Mother is primary carer of the child but has yet to establish her business to a stage where it is income-generating. |
| Legislation: Family Law Act 1975, (Cth) ss.60CC(2) & (3)(a) – (m), 61DA, 65DAA, 75(2) |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Blanding v Blanding (2017) 55 Fam LR 218 Martha C Nussbaum, The fragility of goodness: Luck and ethics in Greek tragedy and philosophy (New York: Cambridge University Press, 1986 [reprint 1995]) |
| Applicant: | MR ALTON |
| Respondent: | MS JANOS |
| File Number: | CAC 931 of 2014 |
| Judgment of: | Judge Neville |
| Hearing dates: | 18 - 20 June 2016; 5 - 6 December 2016; 27 - 28 March 2017 |
| Date of Last Submission: | 1 May 2017 |
| Delivered at: | Canberra |
| Delivered on: | 21 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Batey (withdrew prior to final 2 days of hearing) |
| Solicitor/Advocate for Applicant: | Ms D Simpson (for remaining two days of hearing) |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: | Mr N James (withdrew prior to final 4 days of hearing) |
| Solicitor/Advocate for Respondent: | Mr D Ridge |
| Solicitors for the Respondent: | Barker & Barker |
| Solicitor/Advocate for the Independent Children’s Lawyer: | Mr K Robinson |
| Solicitors for the Independent Children's Lawyer: | Robinson + McGuinness |
ORDERS
Property
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) whenever…
Continue reading Alton and Janos
Sign in free to access the full text
- AGLC
- Alton and Janos [2017] FCCA 3222
- Case
- [2017] FCCA 3222
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms of the property orders, including the method for calculating Ms Janos' entitlement from Mr Alton's superannuation and the division of remaining assets. In relation to parenting, the court needed to establish orders for equal shared responsibility for X, address the mother's potential relocation, and set out detailed arrangements for X's time with both parents, including specific schedules for holidays and birthdays, as well as provisions for communication and dispute resolution.
In its reasoning, the court applied the principles of the *Family Law Act 1975* (Cth), particularly sections relating to superannuation splitting and the paramount consideration of the child's best interests in parenting matters. The judge noted the High Court's observations on judicial discretion in parenting cases, emphasising the importance of the trial judge's ability to observe and assess witnesses. The court found that the parties were unable to agree on most matters, necessitating detailed orders. The judge made specific findings regarding the father's demeanour and approach to the proceedings, observing that he appeared to have moved on from the relationship and sought to minimise engagement with the mother.
The court made orders for the division of Mr Alton's superannuation, entitling Ms Janos to a calculated amount from splittable payments, with a corresponding reduction in Mr Alton's entitlement. The remaining funds were to be divided 52% in favour of the wife and 48% to the husband. Parenting orders established equal shared responsibility for X, with specific restrictions on the mother's relocation for a period, followed by permission to relocate under certain conditions. Detailed time arrangements for X with the father were set out, varying depending on the mother's location and including specific provisions for holidays, birthdays, and communication. The parties were also ordered to attend facilitated parenting meetings for a specified period, with costs allocated based on income. All extant applications were dismissed, and the matter was finalised.
Orders
Orders of the court
Property
1.
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on the behalf of MR ALTON from his interest in (omitted) Super, MS JANOS is entitled to be paid by the Trustee of (omitted) Super the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001,using a base amount of $130,000 and there is a corresponding reduction in the entitlement MR ALTON would have had but for these Orders.
2.
Order 1 has effect from the operative time.
3.
The operative time for Orders 1 and 2 is 32 days after service of a sealed final Order on the Trustee of (omitted) Super, absent any objection to the Order by (omitted) Super.
4.
The Trustee of (omitted) Super, and the parties, have liberty to apply in respect to the implementation of Order 1 to 3 (inclusive), provided such Application is made within 28 days of the operative time.
5.
In relation to the remaining funds held in trust, they should be divided 52% in favour of the Wife and 48% to the Husband.
Parenting
6.
The parties have equal shared responsibility for the child X (born: (omitted) 2012).
7.
Subject to these Orders (or agreement in writing between the parties) the Mother be restrained for a period of 2 years from the date of these Orders, being until 31 December 2019, from relocating outside a radius of 50 kilometres from CANBERRA.
8.
Thereafter, subject to the Mother being certified by the Mediator mentioned in these Orders as having satisfactorily completed the regime of Facilitated Parenting Meetings set out at Order 19 of these Orders (and provided this certification to the Court), the Mother be permitted to relocate to (omitted) on the (omitted) of New South Wales, but otherwise thereafter be restrained from moving the child’s residence within 20 kilometres of the city of (omitted).
Time with the Father while the Mother remains in Canberra
9.
That unless otherwise agreed, and prior to the Mother relocating, X spend time with his Father as follows:
(a) For six months from the date of these Orders being until 30 June 2018,
(i) in week one, from 3:00 p.m. Friday until 9.00 a.m. Monday and, in the event that Monday is a public holiday, to 4.00 p.m. Monday;
(ii) In week two, from 4:00 p.m. Tuesday until 5:00 p.m. Wednesday;
(b) From 1 July 2018 until 31 December 2018,
(i) in week one from 4.00 p.m. Friday to 9.00 a.m. Monday and, in the event that Monday is a public holiday, to 4.00 p.m. Monday; and
(ii) in week two, from 4.00 p.m. Tuesday to 4.00 p.m. Thursday.
(c) From the start of 2019,
(i) in week one from after school Thursday to before school on the following Tuesday; and
(ii) in week two from after school on Tuesday to before school on Thursday.
10.
For the purposes changeover while X is in Canberra, this will occur absent agreement at either daycare, pre-school, school, (omitted) Contact Centre, or at an agreed public place.
Time with the Father after the Mother relocates (from 1 January 2020)
11.
The child spend time with the Father as agreed, but failing agreement:
(a) During school terms on the third, sixth and ninth weekend of each NSW school term with changeovers alternating between Canberra and the (omitted);
(b) For half of each term school holiday period as agreed and failing agreement for the first half in odd numbered years and the second half in even numbered years with changeovers at the commencement of the child’s time with the Father to be on the (omitted) and at the conclusion of time to be in Canberra.
Parenting Orders irrespective of X’s location
12.
X shall spend from 5:00 p.m. Christmas Eve to 10:00 a.m. on Boxing Day with the Father in 2017 and each alternate year thereafter, and from 5:00 p.m. Friday to 5:00 p.m. Sunday on the weekend that immediately precedes Christmas in 2017 and each alternate year thereafter.
13.
In the first year that X attends school, he will spend the Christmas school holidays with his Mother and Father as follows:
(a) For the first two weeks with his Father;
(b) For the second two weeks with his Mother;
(c) A further week with his Father; and
(d) The last week of the school holidays with his Mother.
14.
If X is not in the care of his Father for the following periods:
(a) In the event that X's birthday, or the Father's birthday, falls on a weekday, X will spend from 1:00 p.m. to 5:00 p.m. in the care of his Father on those days;
(b) Once X commences school, if his birthday, or the Father's birthday, falls on a weekday, he will spend from the end of school until 7:00 p.m. in the care of his Father on those days; and
(c) In the event that X's birthday, or the Father's birthday, falls on a weekend, X shall spend a period of not less than four hours on those days with his Father at such times to be agreed, but in default of agreement, from 1:00 p.m. to 5:00 p.m.
15.
X will spend the whole weekend on which Father's Day falls with his Father (Friday 5:00 p.m. to Sunday 5:00 p.m.).
16.
X will spend the whole weekend on which Mother's Day falls with his Mother (Friday 5:00 p.m. to Sunday 5:00 p.m.).
17.
In those even numbered years that Easter does not fall during a term school holiday, X will spend from 5:00 p.m. Easter Saturday to 5:00 p.m. Easter Monday with his Father and in those odd numbered years that Easter does not fall during a term school holiday, X will spend from 5:00 p.m. Good Friday to 5:00 p.m. Easter Sunday with his Father.
18.
That the Father be at liberty to communicate by electronic means and telephone each Monday, Wednesday and Friday and at any reasonable time initiated by the child.
Facilitated Parenting Meetings
19.
Both parties shall attend facilitated parenting meetings as follows:
(a) Arrange and attend, every month for 12 months, a facilitated parenting business meeting. It shall be facilitated by an accredited mediator (or other recognised professional). The cost of the mediator (and any associated costs) shall be borne ⅔ by the Father (because of his greater income) and ⅓ by the Mother;
(b) For each meeting, in the absence of an agreed agenda, each party shall provide the mediator with an agenda of no more than 6 items. At the conclusion of each mediation session, the mediator/facilitator shall provide the Court with the agreed or individual agenda and a note (of no more than one paragraph) regarding what:
(i) matters were agreed and what were not;
(ii) what (if any) the stumbling blocks were encountered; and
(iii) why and who, in the view of the mediator, was responsible for the agreement or disagreement.
(c) At the end of the first 12 months, provided the mediator certifies to the Court that the parties are ready to move to a reduced mediation regime, the parties shall then commence a 12 month period of mediation (with the same mediator or otherwise as agreed in writing) which will take place every second month. The earlier outlined process at Order 19(b) shall apply – agreed or individual agendas (limited to six items), report after each mediation regarding outcomes, the re-commencement of the 12 month period if it is interrupted, and a certification by the mediator at the end of the 12 month period, in this instance, that the parties can reasonably communicate in a business-like manner in relation to parenting.
(d) If there is any interruption in the process (except for medical or other independently verified reasons, and apart from the express written consent of both parties otherwise), the 12 month period of monthly mediation sessions shall re-commence.
(e) The costs of these facilitated parenting meetings shall be borne ⅔ by the Husband, and ⅓ by the Wife.
Other Parenting Orders
20.
At any time, if the Mother is unable to care for the child while the child is in her care, the Father will be given the first option to care for the child before any other care arrangements are made.
21.
The child’s school shall be that which is reasonably closest to the Mother’s residence, subject only to any other agreement in writing between the parties.
22.
That if the Father is unable to spend time with the child when scheduled pursuant to these orders, the Father shall advised the Mother by e-mail or text message not less than 7 days prior to the schedule time.
23.
That neither party shall say derogatory things about the other party or the other party’s family to or in the hearing of the child or allow any other person to do so.
24.
That both parties shall keep the other informed of any medical appointments or similar for the child within 48 hours of becoming aware of same.
25.
That both parties advise the other of any serious illness or injury suffered by the child, as soon as practicable, including the name and contact details of any treating medical or practitioner and provide authority for the other parent to communicate with the child’s medical practitioner including providing information, diagnoses and treatment.
26.
The balance of the outstanding invoice of Ms C should be paid by the party who has not already paid his or her share.
27.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
28.
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 are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
29.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
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
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.