FAMILY COURT OF AUSTRALIA
| FIRENTES & TEUNG | [2014] FamCA 1046 |
| FAMILY LAW – CHILDREN – With whom a child lives – where competing residence applications – where each parent wants sole parental responsibility and child to spend time with the other parent – where in circumstances of separation mother left child in care of father – where significant conflict in parent’s relationship – where significant reservations as to father’s ability to promote the child’s relationship with the mother – where it is in the child’s best interests to live with the mother. FAMILY LAW – PROPERTY – where it is just and equitable to make an order – where father had significant assets prior to relationship – where mother brought no assets to relationship – where father is significantly older than mother – where mother purchased a property after separation – where mother made modest contributions – where consideration of relevant s 75(2) factors. FAMILY LAW – COSTS – Independent Children’s Lawyer – seeks costs against both parties – each party to pay half of the costs. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 75, 79, 117 |
| Bevan& Bevan [2014] FamCAFC 19 Chapman & Chapman [2014] FamCAFC 91 De Roma & De Roma (2013) FamCA 566 Dickons & Dickons [2012] FamCAFC 154 Gahen & Gahen (No. 2) [2013] FamCA 936 Goode and Goode (2006) FLC 93-286. LAC & TRF & LKL (2005) FamCA 158 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 MRR v GRR (2010) 240 CLR 461 Norbis v Norbis (1986) 161 CLR 513 PJ & NW (2005) FamCA 162 Russell & Russell (1999) FLC 92-877 Scott and Danton (2014) FamCAFC 203 Stanford v Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 |
| APPLICANT: | Mr Firentes |
| RESPONDENT: | Ms Teung |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
| FILE NUMBER: | PAC | 3617 | of | 2010 |
| DATE DELIVERED: | 25 November 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 23, 24, 25 July and 6 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Snelling |
| SOLICITOR FOR THE APPLICANT: | Victor Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gardiner |
| SOLICITOR FOR THE RESPONDENT: | Gonzalez & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shearman |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
Orders
Parenting:
That the mother and father have equal shared parental responsibility for the child B born … 2008.
That the child live with the mother.
That the child spend time with the father as follows:
(a) during school terms each alternate weekend from 12 noon Saturday until before school Monday commencing on the second weekend following the making of final orders and recommencing on the first weekend of each school term provided always that in the event that the father obtains other employment that permits him to be available to have the child substantially in his care then such weekends shall be from after school Friday to before school Monday.
(b) during school terms on one…
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- FIRENTES & TEUNG [2014] FamCA 1046
- Case
- [2014] FamCA 1046
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child B in relation to residence and time arrangements, considering the parents' respective capacities to promote the child's relationship with the other parent. Additionally, the court had to consider whether it was just and equitable to make property orders, taking into account the parties' financial contributions, assets brought to the relationship, and relevant factors under section 75(2) of the *Family Law Act 1975* (Cth). Finally, the court was asked to determine the costs of the Independent Children's Lawyer.
In relation to parenting, Foster J made orders for equal shared parental responsibility, with the child to live with the mother. The court found significant conflict in the parents' relationship and expressed reservations about the father's ability to promote the child's relationship with the mother, which weighed heavily in favour of the child living with the mother. On the property front, the court found it just and equitable to make orders, considering the father's significant pre-relationship assets and the mother's more modest contributions, including a property purchased post-separation. The court ordered the father to pay the mother a sum of $171,859. Regarding costs, the court ordered that each parent pay half of the Independent Children's Lawyer's costs, totalling $4,973 each.
Orders
Orders of the court
Parenting:
1.
That the mother and father have equal shared parental responsibility for the child B born … 2008.
2.
That the child live with the mother.
3.
That the child spend time with the father as follows:
(a) during school terms each alternate weekend from 12 noon Saturday until before school Monday commencing on the second weekend following the making of final orders and recommencing on the first weekend of each school term provided always that in the event that the father obtains other employment that permits him to be available to have the child substantially in his care then such weekends shall be from after school Friday to before school Monday.
(b) during school terms on one additional occasion each calendar month from 10:00am Sunday until before school Monday on a weekend to be agreed and in default of agreement on the first weekend of the calendar month when the child would not otherwise be spending time with the father provided always that in the event that the father’s weekend time with the child is from after school Friday to before school Monday as provided for above, this order shall be suspended.
(c) during Term 1, 2 and 3 school holiday periods from after-school on the last day of term until 12 noon on the middle Saturday of the holiday period.
(d) during the Term 4 school holiday period in 2014 and each alternate year thereafter from 3:00pm on Christmas day until 5:00pm on 12 January.
(e) during the Term 4 school holiday period in 2016 and each alternate year thereafter, from 3:00pm on 8 January until 5:00pm on 26 January.
(f) on the Father’s Day weekend from 12 noon Saturday until before school Monday.
(g) in 2015 and each alternate year thereafter from 3:00pm on Christmas Eve until 3:00pm on Christmas Day.
(h) on the child’s birthday if the child is not otherwise spending time with the father, from after school until 6:00pm if the birthday falls on a school day or from 10:00am until 2:00pm if the birthday falls on a non-school day.
(i) at such other times as may be agreed between the parents in writing.
4.
That notwithstanding any other order, the child is to spend time with the mother from 12 noon on the Saturday before Mother’s Day until before school on Monday, on the child’s birthday from after-school until 6:00pm if the birthday falls on a school day or from 10:00am until 2:00pm if the birthday falls on a non-school day, if the child is not otherwise spending time with the mother, and from 9:00am until 5:00pm on the day the Chinese New Year celebrated each year.
5.
That for the purposes of changeover the father or his agent shall collect the child from school if a school day or from the mother or her agent at the Y Westfield shopping centre if a non-school day and return the child to school if a school day or to the mother or her agent at the Y Westfield shopping centre if a non-school day at the conclusion of the child’s visits with the father.
6.
That each parent have telephone communication with the child on Mondays, Wednesdays and Fridays between 7:00pm and 7:30pm when he is in the care of the other parent.
7.
That each parent be restrained from denigrating the other parent or any member of their extended family or household in the hearing or presence of the child and shall not allow any other person to do so.
8.
That each parent keep the other parent informed as to their residential address and telephone number both landline and mobile, and notify the other parent of any change to these details within 48 hours of such change occurring.
9.
That each parent ensure the other parent is advised as soon as is reasonably practicable of any medical emergency or significant illness injury suffered by the child during periods of time that the child is in the care.
10.
That each parent be at liberty to contact the child’s school to obtain information in relation to the child’s progress and to obtain copies of documents ordinarily made available to parents including but not limited to copies of school reports, newsletters and school photograph order forms.
11.
That each parent shall be at liberty to attend the child’s school for the purposes of parent teacher interviews, presentation nights, school performances and concerts or any other academic, cultural or sporting events to which parents are ordinarily invited whether the child is in the care of that parent at the time of the event or not.
12.
That the parents continue to attend upon the Unifam “Keeping Contact” program as to until such time as the program coordinator advises that their attendance is no longer required and shall accept and follow through with any referrals or recommendations made by the program coordinator.
Property:
13.
That within 42 days from the date of these orders the father pay to the mother the sum of $171,859.
14.
That in default of payment by the due date interest will accrue on the sum provided for in Order 13 or such part of that sum as may be underpaid from time to time as provided for in the Family Law Rules.
15.
Liberty to either party to apply as to implementation or enforcement of these orders.
Independent Children’s Lawyer’s Costs:
16.
That within 14 days from the date of these orders the father and mother each pay to Legal Aid NSW the sum of $4,973 in respect to the Independent Children’s Lawyers costs in these proceedings.
17.
Liberty to apply as to enforcement of 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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