FEDERAL CIRCUIT COURT OF AUSTRALIA
| FARADAY & FARADAY | [2020] FCCA 1895 |
| Catchwords: FAMILY LAW – Parenting application – significant and continuous conflict – equal or sole parental responsibility – residence – supervision – spend time – schooling – changeover – where marked age difference between the parties – applicant works in adult entertainment industry – where the respondent worked in that industry as a security guard – where respondent suffered extensive injuries in motor vehicle accidents – where one young child – where applicant separated from respondent on two occasions, and, without notice, the child, furniture and effects – where respondent undertakes surveillance initially to locate the child and later to ascertain whether applicant conducted escort work from home – whether applicant has undiagnosed mental disorder – history of distress at changeovers – where both parties have undergone psychological assessment – where the applicant has received no financial support since final separation – where the respondent has a cohesive and supportive extended family – where the applicant has resided at various residences since the separation – where the applicant has been involved with other partners – whether respondent was unnecessarily disturbed by child’s contact with any adult friends and/or partners of the applicant – where applicant makes unilateral decisions in relation to the care of the child – where dispute between the parties as to the child’s healthcare – where parties dispute enrolment at kindergarten and school – where allegations of drug use – where allegation of sexual misconduct upon child by one of applicant’s friends or partners – where allegation investigated but not pursued by Police post-VARE interview of the child – where DHHS did not find the child to be at risk in parents’ care – where long-term IVO imposed and upheld on appeal against defendant – where leave was given to tender reasons for judgment given in the County Court dismissing the appeal of an IVO against the alleged perpetrator of sexual assault – value in the child’s continued relationship with his extended families – where the applicant raises claim for sole parenting order late in proceedings – where the ICL does not recommend sole parenting – where respondent seeks order for effectively perpetual supervision – child should live with the applicant – increased spend time with the respondent – ancillary orders.. |
| FAMILY LAW – Property application – whether it is just and equitable for an adjustment of property interests to be made pursuant to sub-s 79(2) of the Act – applicant seeking adjustment of property interests – respondent seeking no adjustment – where the parties kept their finances entirely separate during the relationship – where respondent owned real property prior to relationship commencing – where respondent made majority of mortgage repayments – where it was not found that any additions to the property had improved the value of the property – where respondent had no employment income due to suffering severe injuries from accidents – where respondent received TAC payments and applied lump sum payment towards… |
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- AGLC
- FARADAY & FARADAY [2020] FCCA 1895
- Case
- [2020] FCCA 1895
- Decision Date
CaseChat Overview and Summary
The court was asked to determine the extent of equal shared parental responsibility, the primary residence of the child, and the specific time arrangements for the child to spend with each parent, including during school holidays and special occasions. Further issues included the child's schooling arrangements, the payment of school fees, and communication protocols between the parents. The court also considered applications relating to child support and property interests.
The court ordered that the parties have equal shared parental responsibility for the child, with the child to live with the applicant mother. Detailed provisions were made for the child to spend time with the respondent father, including specific days, week-about arrangements, and arrangements for school holidays and special occasions. The court also made orders regarding the child's schooling, stipulating attendance at a particular school and requiring the respondent father to pay all associated fees. Provisions were also made for communication between the parents, including email and text message communication, and restrictions on denigrating the other parent or exposing the child to conflict. The court dismissed the application for a child support departure order and declared that it was not satisfied that an alteration of property interests was just and equitable. The applicant mother was ordered to withdraw a caveat on a property at her expense, with a Registrar appointed to execute the withdrawal in default.
Orders
Orders of the court
General
1.
The applicant’s name in the title of the proceeding be amended to “Ms Faraday”.
2.
Subject to paragraph (3) of this Order, all previous parenting orders (including the order for the appointment of the Independent Children’s Lawyer) be discharged.
3.
Within fourteen (14) days hereof, the Independent Children’s Lawyer (ICL) serve on the Department of Health and Human Services, a sealed copy of this Order together with a copy of these Reasons for Judgment.
Parenting
4.
The parties have equal shared parental responsibility for their child
X
born in 2015 (child).
5.
The child live with the applicant mother.
6.
Subject to the succeeding provisions of this Order, the child spend time and communicate with the respondent father as follows:
(a) commencing Thursday, 6 August 2020, from the later of the conclusion of kindergarten (or 4:15pm on a non-school day) on Thursdays until Tuesdays at 9.00am or the commencement of kindergarten or school;
(b) commencing Friday, 6 August 2021, on a week about basis with changeover to occur from the later of the conclusion of school (or 4:15pm on a non-school day);
(c) for half of all school term holidays commencing Term 1 in 2021, and in default of agreement in writing, with the child to spend time with the applicant mother in the first half of such holidays;
(d) on a week about basis for the Christmas 2020 holidays and thereafter for half of all such Christmas holidays, and in default of agreement in writing, with the child to spend time with the respondent father in the first half of such Christmas holidays;
(e) during Easter holidays in each odd numbered year, commencing Easter 2021, with the respondent father;
(f) Easter holidays in each even numbered year, commencing Easter 2022, with the applicant mother; and
(g) in each year, from 6.00pm on the day prior to ANZAC Day until 6.00pm on ANZAC Day;
(h) at such further and other times as may be agreed in writing between the parents.
7.
If changeover for the child’s time with either parent does not occur on a kindergarten or school day at a school time, then changeover shall occur in the foyer of the Town B Service Station (or such other location as agreed between the parties in writing).
8.
The child spend time on special occasions with his parents as follows:
(a) with the applicant mother for Mother’s Day commencing 6.00pm on the Saturday preceding Mother’s Day until 9.00am on the Monday;
(b) with the respondent father for Father’s Day commencing 6.00pm on the Saturday preceding Father’s Day until 9.00am on the Monday;
(c) with each of the parents for their respective birthdays from conclusion of school or kindergarten (or 9.00am if a non-school day) until 9.00am the following morning;
(d) for the child’s birthday in 2020 and each alternate year thereafter, with the respondent father from 6.00pm on the day preceding the child’s birthday until the commencement of school or kindergarten (or 2.00pm if a non-school day) on the child’s birthday, and with the applicant mother, from the conclusion from school or kindergarten (or 2.00pm if a non-school day) on the child’s birthday until 9.00am the following morning;
(e) for the child’s birthday in 2021 and each alternate year thereafter, with the applicant mother from 6.00pm on the day preceding the child’s birthday until the commencement of school or kindergarten (or 2.00pm if a non-school day) on the child’s birthday and, with the respondent father from the conclusion from school or kindergarten (or 2.00pm if a non-school day) on the child’s birthday until 9.00am the following morning;
(f) with the applicant mother from 4.00pm Christmas Eve until 4.00pm Christmas Day in 2020 and with the respondent father from 4.00pm Christmas Day until 4.00pm Boxing Day in 2020 and each alternate year thereafter;
(g) with the respondent father from 4.00pm Christmas Eve until 4.00pm Christmas Day in 2021 and with the applicant mother from 4.00pm on Christmas Day until 4.00pm Boxing Day in 2021 and each alternate year thereafter; and
(h) such further and other times as agreed between the parties in writing.
9.
Each year, the applicant mother’s time with the child be suspended from 6.00pm on the day prior to ANZAC Day until 6.00pm ANZAC Day, with the applicant mother to be provided make up time the following week.
10.
The child shall communicate with the non-caring parent whilst not in that parent’s care on one occasion each week by video conferencing (Skype or FaceTime) to occur between 5.00 pm and 5.30 pm (or such other time as agreed in writing), with the caring parent to initiate the conference call to the non-caring parent.
Schooling
11.
In 2020, the child attend the Town C Kindergarten at which he is presently enrolled.
12.
Subject to paragraphs (13)-(16) of this Order, commencing in 2021, the child attend D School, to undertake his pre-school, primary and secondary school education respectively.
13.
The respondent father pay all fees for the child’s education at the School.
14.
The respondent father provide a copy of this Order to the School Registrar.
15.
Should the child fail to secure enrolment at the School (pre-school or primary school), the child attend Town B Primary School and the respondent father pay all fees for the child’s pre-school and/or primary education at that school.
16.
Should the child not be accepted for enrolment, or continued enrolment, at the School or Town B Primary School respectively, or should the respondent father become unable to afford the costs of the child’s education at either of such institutions, the following provisions shall apply respecting the child’s education:
(a) the parties be restrained, whether by themselves, their servants, their agents or howsoever otherwise from enrolling the child in any school (whether for primary or secondary school education), other than in accordance with this Order;
(b) not later than four (4) months’ prior to the commencement of school term, each of the parties be at liberty to nominate an alternate educational institution at which they might seek to enrol the child at school (being a primary or secondary school as the case requires) within 20 kilometres of Town B;
(c) the parties shall consult and make a genuine effort to agree upon the school to which application shall be made for the child’s enrolment for the continuation of his education;
(d) failing agreement, the parties shall participate in mediation with a view to reaching agreement upon the school to which application shall be made for the child’s enrolment for the continuation of his education;
(e) should the parties agree upon the school to which such application be made and the child be accepted at that school, he thereafter remain enrolled in such school unless otherwise agreed in writing;
(f) the parties be restrained, whether by themselves, their servants, their agents or howsoever otherwise from making any application under the Family Law Act 1975 (Cth) in relation to the enrolment of the child in any school unless and until they have complied with paragraphs 16(b)-16(d) of this Order.
17.
Each party shall authorise any kindergarten or school where the child attends to provide to each parent, at their own expense, copies of all school reports, photograph order forms and newsletters and each parent shall be at liberty to attend all events, occasions and activities at the child’s kindergarten or school normally attended to by parents including, without limitation, assemblies, sporting events, extra curriculum activities, concerts, fetes/carnivals and parent teacher conferences and where such events require a restricted number of tickets, each parent shall receive one ticket for themselves prior to the allocation or designation of tickets to any other third party by agreement.
18.
If either parent seeks to enrol the child in any extracurricular or sporting activity which will occur during the other parent’s time with the child, such enrolment shall not take place without the written consent of the other parent (and such consent shall not be unreasonably withheld) and both parents:
(a) shall facilitate the child’s attendance at such agreed activities;
(b) may attend notwithstanding the parent may not, on any given occasion, have the child in his or her care; and
(c) shall be subject to any restrictions on attendance or other requirements of any venue at which the child is in attendance.
Communication
19.
The parties shall communicate by way of email or text message in relation to matters arising under this Order including in relation to the care, welfare and development of the child.
20.
Each parent shall communicate in a child focused and civil manner including without limitation, at changeover.
21.
The parents be restrained, whether by themselves, their servants, their agents or howsoever otherwise from:
(a) exposing the child to any family violence or parental conflict;
(b) using any device to record or photograph the child for the purpose of evidence gathering for court or other proceedings; and
(c) denigrating the other parent or parent’s family in the presence or hearing of the child.
22.
The parties shall each inform the other immediately (or as soon as is reasonably practicable) of any serious illness or injury sustained by the child whilst in her or his care or other emergency (including disclosures or serious risk claims by the child) and further provide particulars of any treatment that is being recommended, required or received by the child together with the name and address of the treatment provider and/or location at which that child is hospitalised or in care.
23.
Each party shall promptly provide the other party with information about the health and wellbeing of the child so as to afford them the opportunity to be involved in any discussions (and attend any appointments) which may arise with the child’s medical advisors.
24.
Each party shall make available to the other party any medication prescribed for the child for the other party to administer as prescribed or required.
25.
Each party inform the other of their current residential address, email address and contact telephone number and notify the other within 24 hours of any change to any of the same.
Other matters
26.
Save in the event of an emergency, the applicant mother be restrained whether by herself, her servants, her agents or howsoever otherwise from engaging the child with any medical or allied health professionals without first obtaining the written consent of the respondent father.
27.
The applicant mother comply with all reasonable directions of her treating mental health practitioners.
28.
The applicant mother be restrained from conducting her employment as an escort from her residence at any time during which the child is staying with her.
29.
The parties attend, engage and successfully complete an accredited Parenting Orders Program.
30.
The parties attend family therapy with E Family Services and provide to E Family Services a copy of the s 11F memorandum, Dr F’s Family Report, a copy of this Order and (should they be requested by the service), a copy of these Reasons for Judgment.
Child support – departure order
31.
The application pursuant to s 116 of the Child Support (Departure) Act 1989 (Cth) be dismissed.
Property
32.
Declare, pursuant to sub-ss 79(1) and 79(2) of the Family Law Act 1975 (Cth), that the Court is not satisfied it is just and equitable for an alteration of property interests to be made in this proceeding.
33.
Within thirty (30) days hereof the applicant do all such acts and things and sign all such documents as may be required to withdraw, at her expense, caveat no. ... (caveat) as registered upon title to the real property situate at G Street, Town B, in the State of Victoria, being the whole of the land more particularly described in Certificate of Title, Volume ... Folio ....
34.
In default of the applicant’s compliance with paragraph (33) herein and pursuant to sub-s 106A(1) of the Family Law Act 1975 (Cth) as amended, a Registrar of the Federal Circuit Court of Australia be appointed to execute any documents necessary to withdraw the caveat.
Other
35.
All extant applications be otherwise dismissed.
36.
Within fourteen (14) days, the parties file and serve any submissions as to costs (not exceeding three pages, font 12, 1.5 spacing).
37.
Any question of costs be decided on the papers.
AND THE COURT NOTES THAT:
A. Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order are set out in the attached Fact Sheet and those particulars are included in this Order.
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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