Athenas and Vitrakakis

[2009] FamCA 72

FAMILY COURT OF AUSTRALIA

ATHENAS & VITRAKAKIS [2009] FamCA 72

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment in chambers for parties to rectify terminology in minutes – Child Support order

Family Law Act 1975 (Cth)

APPLICANT: Mr Athenas

RESPONDENT: Ms Vitrakakis

FILE NUMBER: MLC 5335 of 2007

DATE DELIVERED: 11 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 11 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: ALDGATE LAWYERS

SOLICITOR FOR THE RESPONDENT: IN PERSON

Orders

1. That all extant proceedings be adjourned before me in chambers at 9 am on 24 February 2009.

2. That the original minutes be returned to the legal practitioners for the Applicant with a copy of my reasons for declining to make the orders sought.

3. That in the event that the parties or their practitioners do not provide amended minutes by the return date or provide some alternative orders, the matter be treated as if the parties were no longer seeking parenting orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5335 of 2007

MR ATHENAS

Applicant

And

MS VITRAKAKIS

Respondent

REASONS FOR JUDGMENT

1. This is a parenting and child support case that has been sent to me by the Registrar. Although the parties have signed minutes of final orders, they contain provisions under s 124 of the Child Support (Assessment) Act 1989 (Cth) which, notwithstanding the consents, is outside of the registrar’s powers.

2. I propose to adjourn the matter for two weeks to enable some of the drafting problems to be rectified.

3. The minutes were originally sent into the court at a time when the parties did not anticipate that they would be given a requisition to attend to some things. As a consequence, the minutes have provided for events in the life of the child that have now passed. Those events had passed at the time that the lawyers sent in the minutes and it is no longer logical to pursue orders in those terms.

4. The child who is the subject of the orders is a son born in March 2001 so he is only almost 8 years of age.

5. The minutes provide for the parents to “retain joint responsibility” for the long term care, welfare and development of the child. That terminology is no longer appropriate having regard to the 2006 amendments to the Family Law Act 1975 (Cth).  I propose to make the orders conditionally on the practitioners amending the minutes accordingly. If in fact the parties intend that they have equal shared parental responsibility then the orders should say so.

6. Paragraph 5 of the minutes also has a construction problem. It says that the father or his domestic partner Ms J is “to return the child’s school the next day”. I presume that is meant to say that the child is to be returned to his school. There is a similar construction problem in that presumably the child is to be returned to the mother’s residence the next day if it is not a school day.

7. I also have concerns about the clarity of the orders in paragraph 7 because each of the sub-paragraphs seems to be intended by the parties to be read consecutively. I hope the parties understand the meaning and that it does not require enforcement in the future because the terms are certainly not grammatically simple or clear.

8. Paragraph 15 of the minutes purports to be an order under s 124 of the Child Support (Assessment) Act. As such, it seems to me that the provisions of s 126 apply. I require the parties to indicate whether the wife is a recipient of an income tested pension or benefit for the purposes of giving reasons.

9. I note in paragraph 16 that there are two references to “subscribed” medication and I require the parties’ practitioners to confirm that that is what they mean rather than “prescribed”.

10. In the circumstances, I propose to adjourn the matter back to myself in chambers returnable at 9 am on 24 February 2009. If the minutes are not returned by that time with suitable amendments and an explanation that would enable me to make the child support orders, I will conclude that the parties do not intend to seek further orders and will deal with the application on that basis.

I certify that the preceding Ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 February 2009