FEDERAL CIRCUIT COURT OF AUSTRALIA
| FABER & FABER | [2020] FCCA 1162 |
| Catchwords: FAMILY LAW – Property – assessment of contributions – just and equitable. |
| Legislation: Family Law Act 1975(Cth), ss.60B, 60CC, 61DA, 65D, 65DAA, 79. |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Bevan & Bevan [2014] FamCAFC 19 Bondelmonte v Bondelmonte [2017] HCA 8 Boyle & Zahur& Anor (No.2) [2017] FamCAFC 263 Chapman & Chapman [2014] FamCAFC 91 Heaton v Heaton (2012) 48 Fam LR 349 Howard & Howard [2016] FamCA 455 Malcolm v Munro (2011) FLC 93-460 McCall & Clark [2009] FamCAFC 92 Morgan & Miles (2007) FLC 93-343 MRR v GR (2010) 240 CLR 461 at 467 Russell & Russell (1999) FLC 92-877 Sayer & Radcliffe and Anor [2012] FamCAFC 209 Scott & Danton [2014] FamCAFC 203 Stanford v Stanford (2012) 247 CLR 108 Starr & Duggan [2009] FamCAFC 115 Teal & Teal [2010] FamCAFC 120 |
| Applicant: | MR FABER |
| Respondent: | MS FABER |
| File Number: | SYC 8550 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 3, 4 and 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 14 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms Spain |
| Solicitors for the Respondent: | Dignan & Hanrahan Solicitors |
| Counsel for the Independent Children's Lawyer: | Ms Falloon |
| Solicitors for the Independent Children's Lawyer: | Robertson Solicitors |
ORDERS
Parenting Orders
The parents shall have equal shared parental responsibility for the children X born in 2010, Y born in 2012 and Z born in 2014 (“the children”).
The children shall live with the mother.
The children shall spend time with the father as agreed, but failing agreement as follows:
(a)During school terms:
(i)In week 1: from 5pm on Friday until 5pm on Sunday;
(ii)In week 2: from 5pm on Wednesday until the commencement of school on Thursday.
(b)During all of the short school term holidays:
(i)In even-numbered years, from 5pm on the middle Friday of the holiday period, until 5pm on the following Friday;
(ii)In odd-numbered years, from 5pm on the middle Friday of the holiday period, until 5pm on the following Friday;
Except that:
(iii)If the father is unable to obtain leave from work in order to spend time with the children for the days and nights in any period specified in 3(b) above , the children will be with him instead from 5pm on the last Thursday or Friday of the relevant school period until 5pm on the following Sunday.
(c)During the long school holidays commencing at the end of term 4:
(i)For half of each school holiday period, with the children to spend time with the mother over Christmas each alternate year to correspond with the maternal family’s biennial celebrations, and with the father in each other…
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- AGLC
- FABER & FABER [2020] FCCA 1162
- Case
- [2020] FCCA 1162
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to permit the mother to relocate the children, the appropriate parenting arrangements for the children, and how to divide the parties' property in a just and equitable manner. Specifically, the court had to consider the best interests of the children, including the needs of the youngest child who had complex needs, and the impact of any relocation on those interests.
In relation to parenting, the court found that equal shared parental responsibility was appropriate. However, it ultimately ordered that the children live with the mother and imposed a restraint on the mother relocating the children more than 20km from a specified suburb without the father's written agreement. This decision was made in consideration of the children's best interests, particularly the youngest child's complex needs and the importance of maintaining stability and the children's relationship with both parents. On the property front, the court made orders for the division of sale proceeds from a property, an allocation from the husband's superannuation fund to the wife, and declared each party the sole owner of assets in their possession, with the intention of finally determining the financial relationship between the parties.
Orders
Orders of the court
Parenting Orders
1.
The parents shall have equal shared parental responsibility for the children X born in 2010, Y born in 2012 and Z born in 2014 (“the children”).
2.
The children shall live with the mother.
3.
The children shall spend time with the father as agreed, but failing agreement as follows:
(a) During school terms:
(i) In week 1: from 5pm on Friday until 5pm on Sunday;
(ii) In week 2: from 5pm on Wednesday until the commencement of school on Thursday.
(b) During all of the short school term holidays:
(i) In even-numbered years, from 5pm on the middle Friday of the holiday period, until 5pm on the following Friday;
(ii) In odd-numbered years, from 5pm on the middle Friday of the holiday period, until 5pm on the following Friday;
Except that:
(iii) If the father is unable to obtain leave from work in order to spend time with the children for the days and nights in any period specified in 3(b) above , the children will be with him instead from 5pm on the last Thursday or Friday of the relevant school period until 5pm on the following Sunday.
(c) During the long school holidays commencing at the end of term 4:
(i) For half of each school holiday period, with the children to spend time with the mother over Christmas each alternate year to correspond with the maternal family’s biennial celebrations, and with the father in each other year.
(d) On special occasions as follows, if the children would not otherwise be with the father on those days:
(i) From 5pm on Saturday of the weekend that includes Father’s Day, until 5pm on Father’s Day;
(ii) On each of the children’s birthday, from 4:00pm until 6:30pm if the day falls on a school day, and from 10am until 2pm if the day is a non-school day.
4.
The father shall, in a timely manner, inform the mother in writing whether or not he us able to take leave so as to spend time with the children, and in any event not later than one calendar month before his time with the children would commence pursuant to order 3(b) of these Orders.
5.
Order 3 shall be suspended as necessary so that the children spend time with the mother from 5pm on Saturday and for the remainder of the weekend that includes Mother’s Day.
6.
The parent who has the care of the children on Christmas Day shall ensure that the children are available to receive a call by Skype, FaceTime or telephone from the other parent at 9am.
7.
The children shall have telephone communication:
(a) With the father between 5pm and 5:15pm on Tuesdays and Thursdays and any Sunday when they are not spending time with him;
(b) With the mother between 5pm and 5:15pm on any Tuesdays and Thursdays and Sundays when they are not spending time with her;
(c) And also with either parent at any reasonable time(s) when the children or any of them wish to do so.
8.
For all times that the children are to spend with the father, he shall collect them at the commencement of the time, either from school, the mother’s home or another venue agreed between them, and the mother shall collect the children at the conclusion of the time either from school, the father’s home or another venue agreed between them.
9.
The parents may vary the provisions of orders 3 to 7 by written agreement between them.
10.
In the event that the mother requires assistance with the care of the children while they are living with her, she shall in the first instance offer the father the opportunity to provide that assistance, in which case the father shall respond promptly to advise whether or not he is able to assist.
11.
The mother is restrained from relocating the children’s residence further from 20km from the suburb of Suburb A NSW without the prior written agreement of the father.
12.
Neither parent shall:
(a) Speak negatively about the other parent or members of the other parent’s family in the presence or hearing of the children;
(b) Discuss the proceedings with the children or in their presence;
(c) Show the children any document connected with these proceedings.
13.
Each parent shall keep the other advised of his/her residential address and telephone contact number(s).
14.
Both parents:
(a) Are at liberty to attend school and extra-curricular events in which the children are participating, and the attendance of parents is invited or otherwise permitted;
(b) Shall do everything necessary to ensure that they are both able to receive copies of all reports, order forms for school photographs, newsletters, approvals for school excursions and any other written material provided by the children’s schools.
15.
The mother shall ensure that any school attended by the children, and any professionals treating a child from time to time, are authorised to provide information to the father, and that those institutions and professionals have the father’s contact details.
16.
The parents shall keep each other informed about:
(a) Any illness or injury suffered by a child including any visits to doctors or hospitals;
(b) Any medication prescribed for a child;
(c) Any appointments for specialist medical assessments or treatments, or any other therapeutic interventions, with 28 days’ notice of such appointments whenever practicable;
(d) Any other matters relevant to the children’s welfare.
17.
For the purposes of these orders, ‘writing’ includes text messages and emails.
Property Orders
18.
These Orders are made by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975.
19.
That the proceeds of sale of the property situated at and known as B Street, Suburb A, folio identifier ..., in the amount of $49,930.00 currently held in a Controlled Monies account operated by Marsdens Law Group be paid to the respondent wife.
20.
That the following Order takes effect from the operative time.
21.
That the Court allocate, pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), a base amount of $34,455.00 to the respondent wife out of the applicant husband’s interest in the Super Fund C.
22.
That whenever a splittable payment becomes payable in respect of the applicant husband’s superannuation interest in the Super Fund C the respondent wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount, at the date of these Orders in the sum of $34,455.00 and that there be a corresponding reduction of the entitlement to the person to whom the splittable payment would have been made but for these Orders.
23.
That this Order binds the Trustee of the Super Fund C.
24.
That the operative time of these Orders is four (4) business days after the service of this Order on the Trustee of the Super Fund C.
25.
That the Solicitor for the respondent wife shall forthwith cause a sealed copy of these orders to be served on the Trustee of the Super Fund C.
26.
That pursuant to section 78 of the Family Law Act 1975 (Cth) that each of the applicant husband and respondent wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of all items of motor vehicles, furniture, furnishings, personalty, chattels, jewellery and monies (whether held in cash or in deposit with any bank, building society, credit union or other financial institution) presently in each party’s possession, custody or control together with all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant, subject to these Orders.
27.
That in the event that either party should fail, neglect of refuse to sign or execute any deed, document or instrument required by to give effect to these Orders then pursuant section 106A of the Family Law Act 1975 (Cth) that the Registrar of the Federal Circuit Court of Australia at Parramatta Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
28.
That pursuant to section 81 of the Family Law Act 1975 (Cth), these Orders are intended to operate so as to finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.
29.
Remove all outstanding issues from the list of cases awaiting finalisation.
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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