FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINN & FINN (No.3) | [2013] FCCA 1373 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – spend time arrangements – overnight time – overseas travel – issue of appropriate bond – passport – watchlist – communication book. FAMILY LAW – Property – small property pool – father’s failure to provide ‘full and frank disclosure’. CHILD SUPPORT – Departure – application for departure from administrative assessment of child support. |
| Legislation: Federal Circuit Court Rules 2001, reg.24.03 |
| Black & Kellner (1992) FLC 92-287; 15 Fam LR 343 Finn & Finn [2011] FMCAfam 1135 Finn & Finn (No.2) [2011] FMCAfam 1561 Gyselman & Gyselman(1991) 15 Fam LR 219; (1992) FLC 92-279 Guinti and Giunti (1986) 11 Fam LR 160; (1986) FLC 91-759 In the Marriage of Briese (1985) 10 Fam LR 642; (1986) FLC 91-713 In the Marriage of Hickey (2003) 30 Fam LR 355; (2003) FLC 93-143 Livesey v Jenkins [1985] All ER 106 McCall & Clark [2009] FamCAFC 92 Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103 Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653 Stanford v Stanford [2012] HCA 52 Weir & Weir (1993) FLC 92-338; (1992) 16 Fam LR 154 |
| Applicant: | MR FINN |
| Respondent: | MS FINN |
| File Number: | SYC 5733 of 2010 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 6, 7, 8, 9 and 10 May 2013 |
| Date of Last Submission: | 7 June 2013 (written submissions) |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Belgrave Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Givney |
| Solicitors for the Respondent: | Self represented litigant |
| Counsel for the Independent Children’s Lawyer: | Ms Falloon |
| Solicitors for the Independent Children’s Lawyer: | Peter Baker Solicitors |
ORDERS
Child Support
Pursuant to s.117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment payable by MR FINN, (“the Father”) to MS FINN (“the Mother”) in respect of the child X, born in (country omitted) on (omitted) 2010 (“X”) as follows:
(a)for the period commencing 1 April 2013 and ending 30 June 2014 the child support payable be set at the annual rate of $7,800.00 (“the departure amount”);
(b)the departure amount be adjusted on 1 April 2015, 1 April 2016 and 1 April 2017 in line with movements in the weighted average of the national weighted Consumer Price Index (“the adjusted departure amount”);
(c)for the period commencing 1 July 2014 and ending 30 June 2017 the child support payable be as assessed by the Child Support Agency from time to time OR be set at the adjusted departure amount, whichever is HIGHER; and
(d)for the period commencing 1 July 2017 the child support payable be as assessed by the Child Support Agency from time to time.
The Mother forthwith cause the…
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- Case
- [2013] FCCA 1373
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate child support payable by the Father to the Mother, and to establish parenting orders regarding X's residence, time spent with each parent, and the allocation of parental responsibility for major long-term decisions. Additionally, the court considered orders relating to X's passport, overseas travel, and property settlement between the parties.
The court made orders for a departure from the administrative child support assessment, setting a specific annual rate for a defined period and providing for adjustments based on the Consumer Price Index. In relation to parenting, the court ordered equal shared parental responsibility for major long-term decisions, with the Mother's view prevailing in specific circumstances concerning X's health. The orders detailed X's living arrangements and a phased schedule for time spent with the Father, including provisions for school holidays and specific dates. The court also made orders regarding the completion of parenting courses by both parents, communication between them, and restrictions on X's travel outside of Australia, with specific exceptions for a trip to a particular country by the Mother. A property settlement was ordered, requiring the Father to pay a sum to the Mother within 28 days, with provisions for its release contingent on the Mother's return to Australia with X. The court also made orders regarding the division of chattels, financial assets, and liabilities.
Orders
Orders of the court
Child Support
1.
Pursuant to s.117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment payable by MR FINN, (“the Father”) to MS FINN (“the Mother”) in respect of the child X, born in (country omitted) on (omitted) 2010 (“X”) as follows:
(a) for the period commencing 1 April 2013 and ending 30 June 2014 the child support payable be set at the annual rate of $7,800.00 (“the departure amount”);
(b) the departure amount be adjusted on 1 April 2015, 1 April 2016 and 1 April 2017 in line with movements in the weighted average of the national weighted Consumer Price Index (“the adjusted departure amount”);
(c) for the period commencing 1 July 2014 and ending 30 June 2017 the child support payable be as assessed by the Child Support Agency from time to time OR be set at the adjusted departure amount, whichever is HIGHER; and
(d) for the period commencing 1 July 2017 the child support payable be as assessed by the Child Support Agency from time to time.
2.
The Mother forthwith cause the Child Support Registrar to be served with a sealed copy of these orders.
3.
The Mother have liberty to apply in the next 12 months to have the matter relisted in the event there are difficulties in the implementation of these orders by the Child Support Agency.
Parenting
4.
All previous orders with respect to X are hereby discharged.
5.
Subject to paragraph 6 and 24 herein, the Father and the Mother have equal shared parental responsibility for making major long-term decisions about X.
6.
If, after civil and timely consultation with each other, the parties are unable to agree about a major long-term decision with respect to X’s health, including a decision about elective medical or dental procedures, then the Mother’s view as to the decision in X’s best interests prevail and the Mother promptly advise the Father of the decision she has made, and provide him with all relevant information known to her, including but not limited to the contact details for the health facility where the procedure will be carried out.
7.
X live with the Mother when she is not spending time with the Father pursuant to these Orders.
8.
X spend time with the Father as agreed or, failing agreement, as follows:
(a) from the date of these orders until the commencement of paragraph 8(b) herein:
(i) each Wednesday from 10:00am to 4:00pm;
(ii) each Sunday from 10:00am to 4:00pm;
(b) subject to paragraph 11 herein, from 9 April 2014 until 10 August 2014 in a two week cycle as follows:
(i) in week one: Wednesday from 10:00am to 4:00pm and on Sunday from 10:00am to 4:00pm;
(ii) in week two: Wednesday from 10:00am to 4:00pm and Saturday for an additional period of not more than 24 hours at times as agreed or, failing agreement from 4:00pm Saturday until 4:00pm Sunday.
(c) from 13 August 2014 until 1 February 2015 in a two week cycle as follows:
(i) in week one: Wednesday from 10:00am to 4:00pm; and
(ii) in week two: Wednesday from 10:00am to 4:00pm and on Friday from 6:00pm until Sunday 6:00pm.
(d) from (omitted) 2015, in a two week cycle during school terms as follows:
(i) in week one: commencing in the first week of each new school term, Wednesday from 4:00pm to 7:00pm, and Friday from 6:00pm until Sunday at 6:00pm; and
(ii) in week two: Wednesday from 4:00pm to 7:00pm.
9.
Commencing in 2015 and every year thereafter, X spend time with the Father during school holidays as agreed or, failing agreement, as follows:
(a) during holidays commencing after the 1st, 2nd and 3rd school terms in odd-numbered years from 10:00am on the midpoint day of the holiday period until 6:00pm on day before the new school term;
(b) during holidays commencing after the 1st, 2nd and 3rd school terms in even-numbered years from 6:00pm on the last day of school until 10:00am on midpoint day of the holiday period;
(c) In the long summer school holidays as follows:
(i) in 2015: for 3 non- consecutive periods of not more than 7 days and 6 nights as agreed or, failing agreement from 10:00am on 27 December 2015 to 10:00am on 1 January 2016, from 10:00am on 7 January 2016 to 10:00am on 13 January 2016; and from 10:00am on 19 January 2016 to 10:00am on 25 January 2016;
(ii) in 2016 and even-numbered years thereafter: from 6:00pm on the last day of school until 10:00am on the mid-point day of the holiday period; and
(iii) in 2017, and odd-numbered years thereafter: from 10:00am on the midpoint day of the holiday period until 6:00pm on the day before the commencement of the new school term.
10.
Notwithstanding any other order made herein, X spend time as follows:
(a) each year with the Mother, from 10:00am to 4:00pm on Mothers’ Day;
(b) each year with the Father, from 10:00am to 4:00pm on Father’s Day;
(c) with the Father from 10:00am to 4:00pm on 25 December 2013;
(d) with the Father from 4:00pm on 24 December 2014 until 10:00am on 25 December 2014;
(e) with the Father from 10:00am to 4:00pm on 25 December 2015; and
(f) with the Mother from 10:00am to 4:00pm on 25 December 2016.
11.
Pursuant to paragraph 8(b)(ii) herein, X’s overnight time with the Father prior to 19 April 2014 be conditional upon the following:
(a) the Father having provided to the Mother certificates of his attendance and completion at the following 3 courses:
(i) EITHER the course provided by Relationships Australia called “Taking Responsibility” OR the course provided by (omitted) Relationship Services called “(omitted)” (as recommended in the Family Report of Ms R, dated 25 February 2013); and
(ii) a Triple P (Positive Parenting Programme) course (also as recommended in the Family Report of Ms R, dated 25 February 2013); and
(iii) the “Keeping Contact” course provided by (omitted); and
(b) the Father having confirmed to the Mother in writing that he has suitable sleeping accommodation for X at his residence.
12.
The Mother attend and complete a Triple P Parenting programme and the (omitted) “Keeping Contact” programme as soon as practicable after the date of the making of these orders, and provide the Father with a certificate of her having completed the programme.
13.
For changeovers on days when X is not at child care, pre-school or school, the Father collect X from the Mother’s residence at the commencement of her time with him, and return her to the Mother’s residence at the conclusion of that time.
14.
If on any occasion the Father is more than 60 minutes late in arriving to collect X from the Mother pursuant to these orders, then the Mother is entitled to regard X’s time with the Father on that occasion as being cancelled.
15.
Both the Father and the Mother be at liberty to attend all school events and extra-curricular activities X is involved in, and to obtain all information from X’s school about her progress, and to attend all parent-teacher events.
16.
Neither parent make arrangements for X to engage in any extra-curricular activity that would take place during X’s time with the other parent, without the express written consent of the other parent.
17.
If X is engaging in an extra-curricular activity as agreed between the parents, the parent having care of her during the time(s) for that activity take her to that activity.
18.
Neither party denigrate the other, or permit any other person to do so, in X’s presence or hearing, and at all times the parents communicate with each other in a civil and courteous manner.
19.
If X suffers illness or injury requiring admission to hospital, the parent having care of her at that time immediately inform the other parent, and provide the other parent with details of the hospital, including a telephone number for the treating team.
20.
Subject to paragraph 21 herein, both parties keep the other informed about X’s activities, health, education, development and day-to-day care including any medications administered to her during her time with a parent through the use of a communication book to be exchanged between the parties each time X moves from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the Mother and replaced by the party with whom the child is living or spending time at the time when the existing communication book is filled (“the communication book”).
21.
The parties each be restrained from writing anything in the communication book which is not related to X and from using offensive, discourteous or derogatory language in the book or from otherwise using the communication book to record personal comments or criticisms about each other, or as a means to threaten or intimidate each other.
22.
If either party intends moving residence that party give the other party not less than 7 days’ notice in writing of the new address.
23.
At all times the parties keep each other advised of their residential addresses and contact telephone numbers.
24.
Notwithstanding paragraph 5 herein, the Father’s consent not be required for the issue of an Australian passport for X, female, born in (country omitted) on (omitted) 2010, on the first occasion or for any replacement of that passport within the following 5 years (“the Passport”).
25.
Subject to any agreement between the parties to the contrary, upon the issuing of the Passport, the Mother immediately lodge the passport with the Court’s Sydney Registry, where it be retained until it is released either:
(a) for the purposes of paragraph 31 herein; OR
(b) to either party, with the written consent of the other party; OR
(c) by further order of the Court.
26.
Within three days of X’s return to Australia, the party then having care and control of the Passport lodge it again with the Court’s Sydney Registry and immediately advise the other party in writing that he/she has done so.
27.
Until (omitted) 2018, both parties be restrained from obtaining a passport for X from a country other than Australia.
28.
The Mother and Father and their servants and agents are restrained from taking or sending or attempting to take or send X from the Commonwealth of Australia.
29.
IT IS REQUESTED that the Australian Federal Police give effect to this order by placing X’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain X’s name on the Watch List until her 8th birthday, being on (omitted) 2018, or the Court orders its removal.
30.
Paragraphs 28 and 29 herein do not prohibit the taking or sending of X from Australia to a place outside Australia if it is done pursuant to paragraph 31 herein or with the consent in writing of each party (authenticated as prescribed in accordance with r.12 of the Family Law Regulations 1984).
31.
Notwithstanding paragraphs 28 and 29 herein, the Mother be permitted to travel with X to (country omitted) once only for up to 28 days within the period 5 September to 30 November 2013 OR 1 February to 31 March 2014 (but not during the period 1 December 2013 to 31 January 2014) and, during that time:
(a) X visit only the country of (country omitted), other than for stopovers; and
(b) the Mother ensure that X speaks to the Father by telephone, or Skype if the Father can facilitate Skype communication, not less than every three days, other than when such contact is not possible because of airline schedules or local conditions beyond the Mother’s control.
Property
32.
By way of property settlement the Father pay to the Mother the sum of $15,000.00 (“the payment”) with the Father to cause the payment to be deposited into the trust account of his solicitors within 28 days of the date of these Orders.
33.
Subject to paragraph 35 herein, the Father is directed to forthwith provide his solicitors with an irrevocable authority to release the payment to the Mother as she may direct in writing by no later than 9 April 2014 or not less than 7 days following the Mother’s compliance with paragraph 34 herein, whichever event should first occur.
34.
Upon the Mother’s return to Australia with the child from (country omitted), she is directed to forthwith cause the husband’s solicitors to be provided with a copy of the relevant pages of X’s passport that evidences X’s return to Australia.
35.
In the event that the Mother does not cause X to return from (country omitted) within 30 days of the departure permitted by paragraph 31 herein, then the Father have liberty to apply to have the matter relisted to seek that the payment be released to him for the purpose of commencing proceedings to secure the return of X to Australia.
36.
Unless otherwise specified in these Orders:
(a) each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings and any other property in the possession of such party as at this date;
(b) each party be solely entitled to any moneys, shares and debentures which stand in such party’s name as at this date;
(c) each party be solely entitled to any superannuation benefits held in such party’s name and each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other; and
(d) each party be solely liable for and indemnify the other against any debt, loan or liability whatsoever held in such party’s name as at this date.
Other
37.
In the event that they are unable to reach agreement relating to the children’s long term care, welfare and development, the parties participate in family dispute resolution.
38.
Subject to paragraphs 11 and 12 herein, the appointment of the Independent Children’s Lawyer be discharged.
39.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
(A) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Annexure A and those particulars are included in these orders.
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