FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECKETT & BECKETT | [2017] FCCA 608 |
| Catchwords: FAMILY LAW – Parenting and property – where concerns about the father’s mental health – whether supervision required, and if so, on what terms – assessment of contribution and future needs – where father had proceeds of a total permanent disability claim – just and equitable order. |
| Legislation: Child Support (Assessment) Act 1989, ss.117, 123, 123A Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395 Irving & Parkes [2015] FCCA 3049 Martell & Allard [2012] FMCAfam 326 MRR v GR [2010] HCA 4 |
| Applicant: | MS BECKETT |
| Respondent: | MR BECKETT |
| File Number: | WOC 315 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 22-25 August 2016 |
| Date of Last Submission: | 6 February 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 28 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| Counsel for the Respondent: | Mr Gardiner |
| Solicitors for the Respondent: | Slater & Gordon Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Jackson |
| Solicitors for the Independent Children's Lawyer: | Maguire & McInerney Lawyers |
ORDERS
Parenting
All previous orders in these proceedings are hereby discharged
That the Mother have sole parental responsibility for the children, X (born (omitted) 2007) and Y (born (omitted) 2009).
That the children live with the Mother.
Conditional upon the terms set out in Orders 5 and 6 below, the children spend time with the Father as follows:
(a)During school terms 1 and 4, each alternate Friday afternoon commencing at 4:00pm until the following Sunday afternoon at 5:00pm;
(b)During school terms 2 and 3 for the purpose of participating in weekend sport:
(i)each third Friday afternoon commencing at 4:00pm until the following Sunday afternoon at 5:00pm, (being the second and fifth and eighth weekend of such school terms);
A.to be suspended on any weekend coinciding with Mother’s Day.
B.to be suspended if such a weekend falls on Y’s birthday, from 9:00am until 5:00pm on that given day.
(ii)from Friday 4:00pm on the weekend coinciding with Father’s Day until Sunday 5:00pm if not consistent with weekend as set out in Order 4(b)(i).
(iii)for the birthday celebrations of: Y if it does not coincide with the period set out in Order 4(b)(i):
A.from 9:00am until 5:00pm if it falls on a weekend;
B.from after school until 7:30pm if it falls on a weekday.
(iv)The parties will aim as best as possible to ensure that the Father’s weekend time will coincide with the Queen’s Birthday weekend and Father’s Day, and will not coincide with Mother’s Day.
(c)During school holidays:
(i)For the first half of each mid-year school holidays in years ending in an even numbered year from the last Friday of the school term at…
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- Beckett and Beckett [2017] FCCA 608
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CaseChat Overview and Summary
The court was required to determine the specific orders regarding parental responsibility, the children's living arrangements, and the time the children would spend with each parent. Additionally, the court needed to make orders concerning the division of property, including the former matrimonial home, bank accounts, vehicles, and superannuation entitlements, as well as address an application for child support.
The court made detailed orders regarding parenting, granting the Mother sole parental responsibility and primary care of the children, with specific, conditional time arrangements for the Father. These conditions included requirements for the Father to reside with his parents or siblings in the ACT during his time with the children, to abstain from alcohol, and to continue mental health treatment. The court also imposed restrictions on the Father regarding animal hunting and required him to provide authorities for access to his medical records. In relation to property, the Father was ordered to transfer his interest in the former matrimonial home to the Mother, who would then refinance the mortgage. Specific distributions were ordered for funds held by lawyers in relation to a TPD claim and superannuation, and each party was declared the sole owner of certain bank accounts, vehicles, and other assets. The Mother's application for child support was dismissed.
Orders
Orders of the court
Parenting
1.
All previous orders in these proceedings are hereby discharged
2.
That the Mother have sole parental responsibility for the children, X (born (omitted) 2007) and Y (born (omitted) 2009).
3.
That the children live with the Mother.
4.
Conditional upon the terms set out in Orders 5 and 6 below, the children spend time with the Father as follows:
(a) During school terms 1 and 4, each alternate Friday afternoon commencing at 4:00pm until the following Sunday afternoon at 5:00pm;
(b) During school terms 2 and 3 for the purpose of participating in weekend sport:
(i) each third Friday afternoon commencing at 4:00pm until the following Sunday afternoon at 5:00pm, (being the second and fifth and eighth weekend of such school terms);
A. to be suspended on any weekend coinciding with Mother’s Day.
B. to be suspended if such a weekend falls on Y’s birthday, from 9:00am until 5:00pm on that given day.
(ii) from Friday 4:00pm on the weekend coinciding with Father’s Day until Sunday 5:00pm if not consistent with weekend as set out in Order 4(b)(i).
(iii) for the birthday celebrations of: Y if it does not coincide with the period set out in Order 4(b)(i):
A. from 9:00am until 5:00pm if it falls on a weekend;
B. from after school until 7:30pm if it falls on a weekday.
(iv) The parties will aim as best as possible to ensure that the Father’s weekend time will coincide with the Queen’s Birthday weekend and Father’s Day, and will not coincide with Mother’s Day.
(c) During school holidays:
(i) For the first half of each mid-year school holidays in years ending in an even numbered year from the last Friday of the school term at 4:00pm until 4:00pm on the following Friday.
(ii) For the second half of each mid-year school holidays in years ending in an odd numbered year to commence at 4:00pm on Friday and conclude on the following Friday at 4:00pm.
(iii) For the first half of each end of year school holidays in years ending in an even numbered year to from the last Friday of the school term at 4:00pm until 4:00pm on 2 January.
(iv) For the second half of each end of year school holidays in years ending in an odd numbered year to commence at 4:00pm on 2 January and conclude on the Friday at 4:00pm before school is to commence.
(v) Time in Orders 4(c)(iii)-(iv) be suspended for the period from Christmas Eve at 12 noon until Boxing Day at 8:30pm.
(vi) From Christmas Eve at 12 noon until Christmas Day at 5:30pm in years ending in an even number.
(vii) From Christmas Day at 5:30pm until Boxing Day at 8:30pm in years ending in an odd number.
5.
The Father’s time during school term weekends with the children as set out in Orders 4(a)-(b) is conditional upon:
(a) The Father living for two years from the date of the Orders in the residence of his parents, (being both or if relevant either one), Mr B and Ms S, if his parents both (or if relevant either one) live in the Australian Capital Territory (ACT), and that the Father does all things necessary to ensure that at least one of his parents remain in the ACT during the course of that spend time period with the children.
(i) In the event that both of the Father’s parents are not available to remain in the ACT during his spend time period, then where relevant any overnight spend time period shall take place at either the Father’s brother’s Mr M or Mr N‘s residence, if his brothers both (or if relevant either one) live in the Australian Capital Territory (ACT), and that the Father does all things necessary to ensure that at least one brother remain in the ACT during the course of that spend time period.
(b) That the Father without admission is to not consume alcohol during the period of spend time and 12 hours before the commencement of the spend time period.
(c) That for a further three years from the date of these Orders, the Father shall continue regular and appropriate treatment and/or counselling for his mental health, unless there is a written advice from a treating psychiatrist that such treatment and/or counselling is no longer required with such a condition does not prohibit the Father from continuing such treatment and/or counselling beyond the three year period.
(d) That within seven days from the date of these Orders the Father is to provide his treating doctors (including psychiatrists) and psychologists with an authority to ensure that the Mother has access to any records of attendances and medication as prescribed.
(e) That the Father is not to take the children on any animal hunting events.
6.
That the Father’s time during school holidays with the children as set out in Order 4(c) is conditional upon:
(a) If the time takes place in the ACT, the same conditions as such out in Order 5(a) above.
(b) If the time takes place outside the ACT, for the first two years from the date of the Orders any one or more or the Father’s parents or brothers shall accompany the Father and the children on any such interstate (or ‘interterritory’) trips including holidays.
(c) That the Father without admission is to not consume alcohol during the period of spend time and 12 hours before the commencement of the spend time period.
(d) That the Father is not to take the children on any animal hunting events.
7.
That for the purpose of changeover the Father and the Mother will facilitate changeover at (omitted) Service Station.
8.
The parents are restrained from denigrating the other in the presence of the children.
9.
Both parents are prohibited from publishing any information on social media that refers in any way to the other parent.
10.
That the Mother shall ensure that the Father is kept informed by way of email as soon as it is reasonably practical of:
(a) Any serious medical problems or illnesses suffered by the children;
(b) Any specialist medical appointments;
(c) Any significant social, school or religious functions which the children are to attend to which the Father shall be entitled to attend;
(d) The details of any sporting body(ies) that the children are involved in;
(e) Any other important matter relevant to the welfare of the children.
11.
The Mother shall provide authorities to the children’s school and medical providers to enable the Father to receive any relevant information otherwise provided to parents.
12.
The parents shall keep the other informed of their respective residential addresses, contact telephone numbers and email addresses and is to inform the other of any change to same within 7 days of such change occurring.
13.
The Father is entitled to attend all events involving the children including, but not limited to:
(a) Sporting fixtures;
(b) Extracurricular activities that allow for parent attendance or participation;
(c) School functions and events that allow for parental attendance or participation.
Property
14.
Within 60 days, the Father shall do all acts and sign all documents necessary to transfer to the Mother his entire right title and interest in the parties' former matrimonial home known as and situated at Property H (being the whole of the land contained in Certificate of Title folio identifier (omitted)).
15.
Simultaneously with the Father’s compliance with Order 14 above, the Mother shall do all acts and sign all documents necessary to refinance into her sole name the mortgage loan secured on the property in the parties' joint names with (omitted) Bank and thereafter the Mother shall indemnify the Father and forever keep him indemnified against any liability in respect of the home including but not limited to the payment of water and council rates, mortgage repayments and insurance payments.
16.
Within 30 days, any funds held on trust or in a controlled monies account by Slater & Gordon Lawyers in respect of the TPD claim be released to the parties as follows:
(a) $77,380.48 to the Mother; and
(b) remainder to the Father.
17.
The Mother shall be the sole owner of and solely responsible for:
(a) any funds contained in the Mother's (omitted) account (a/c (omitted));
(b) the Mazda (omitted) (registration number (omitted)).
18.
The Mother is declared to have sole right title and interest in any interest in her name in the (omitted) Super fund.
19.
The Father shall be the sole owner of and solely responsible for:
(a) any funds contained in the Father's (omitted) Bank account (a/c (omitted));
(b) the Mitsubishi (omitted) ute (registration number (omitted));
(c) the (omitted) boat (registration number (omitted)).
20.
Any funds held on trust or in a controlled monies account by Slater & Gordon Lawyers in respect of the Father’s superannuation entitlements shall be forthwith released to the Father and retained by him for his sole benefit to the exclusion of the Mother.
21.
The Mother and the Father shall have the sole right title and interest in:
(a) Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively.
(b) Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
22.
In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
23.
The Mother’s application for child support pursuant to s.123 of the Child Support (Assessment) Act 1989 be dismissed.
24.
Leave be granted to the parties to approach Chambers to relist the matter on 14 days’ notice as regards the interpretation and implementation of these Orders.
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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