FREDERICKS & CARRIGAN

Case [2012] FMCAfam 663


FEDERAL MAGISTRATES COURT OF AUSTRALIA

FREDERICKS & CARRIGAN [2012] FMCAfam 663
FAMILY LAW – Children – parenting orders – child maintenance – children aged 15 & 8 – overseas travel – father resident of [Q] – children live in Adelaide with mother – father seeks orders that children spend time with him in [Q] – mother opposes overseas travel for children – [Q] not a signatory to Hague Convention – both father and mother born in Pakistan – assessment of risk of deviation by father with children to Pakistan – Pakistan also not a signatory to Hague Convention – parties have poor and mistrustful relationship – assessment of father’s bona fides – assessment of risk of non return – best interests of children – benefit of meaningful relationship with father – benefit of children interacting with father in his home environment – whether security should be imposed – assessment of financial needs of children – capacity of parties to contribute to those needs – father employed as [omitted] – mother employed on a part time basis as [omitted] – father’s income paid in [currency omitted] and not liable to income tax – father provided with furnished accommodation in [D] – no independent evidence available regarding cost of living expenses in [Q] – relevance of child support scheme – relevance of published research regarding costs of children in Australia – what is proper – costs.

Family Law Act 1975, ss.60CA; 60CC; 64B; 66B; 66C; 66E; 66H; 66J; 66K; 117(1)
Child Support (Assessment) Act 1989, ss.4(2)(b)
Child Support (Regulation & Collection) Act 1988, ss.17, 72D

Evidence Act1995, s.144

Carrigan & Fredericks [2011] FMCAfam 544
Maider &Carrigan [2008] FamCA 862
Maider & Carrigan [2009] FamCA 483
Beck v Sliwka (1992) 15 FLR 520
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Gin & Hang [2010] FamCA 617
Cadena & Beltran [2010] FMCAfam 1165
Bray & Constable [2011] FMCAfam 1397
Applicant: MS FREDERICKS
Respondent: MR CARRIGAN
File Number: ADC 4281 of 2007
Judgment of: Brown FM
Hearing dates: 15 July 2011, 30 September 2011 & 23 January 2012
Date of Last Submission: 18 April 2012
Delivered at: Adelaide
Delivered on: 12 July 2012

REPRESENTATION

Counsel for the Applicant: In Person
Counsel for the Respondent: Mr Bowler
Solicitors for the Respondent: Matthew Mitchell

ORDERS

  1. The respondent father Mr Carrigan pay maintenance for the children of the marriage [X] born [in] 1997 and [Y] born [in] 2003 to the applicant mother Ms Fredericks at the rate of A$1,250.00 (A$625.00 in respect of each child) per calendar month. 

  2. Order (1) hereof commence on 1 September 2009 and all sums of maintenance to be paid by the respondent father to the applicant mother be calculated from this date. 

  3. The orders made by the court in respect of the provision of maintenance for the aforesaid children be registered for collection with the Child Support Agency pursuant to the provisions of the Child Support (Registration & Collection) Act 1988.

  4. The…

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AGLC
FREDERICKS & CARRIGAN [2012] FMCAfam 663
Case
[2012] FMCAfam 663
Decision Date

CaseChat Overview and Summary

Fredericks & Carrigan involved a dispute between Ms Fredericks and Mr Carrigan regarding the financial support of their two children. The matter was heard and determined by the Family Court of Australia. Ms Fredericks sought maintenance payments for the children, as well as arrangements for Mr Carrigan's access to the children during the holiday period. The legal issues in this case primarily revolved around the calculation and enforcement of maintenance payments, as well as the visitation arrangements for the children during the December/January school holidays.

The court was required to determine the appropriate amount of maintenance payments Mr Carrigan should make to Ms Fredericks for their two children. The court also needed to address the specific conditions under which Mr Carrigan could exercise his visitation rights during the holiday period. Furthermore, the court had to consider the enforcement mechanisms for the maintenance payments and the arrangements for ensuring the children's safe travel and return from the holiday period.

The court ruled that Mr Carrigan should pay Ms Fredericks A$1,250.00 per month in maintenance for the children, with payments starting from 1 September 2009. The court also ordered that these payments be registered with the Child Support Agency for collection. Mr Carrigan was required to make payments to the Registrar of the Child Support Agency on the 15th of each month, starting from 15 July 2012. The court further directed that any outstanding arrears of maintenance should be settled using funds held by the Child Support Agency in Mr Carrigan's name, with any remaining arrears to be paid at a rate of A$50.00 per month. The maintenance payments were to cease when each child turned 18 or became financially independent. The court also ordered that the maintenance payments be indexed to the Consumer Price Index for Adelaide.

The final orders included detailed provisions for Mr Carrigan's access to the children during the holiday period, with specific conditions regarding travel arrangements and the provision of security to ensure the children's safe return to Australia.

Orders

Orders of the court

1.

The respondent father Mr Carrigan pay maintenance for the children of the marriage [X] born [in] 1997 and [Y] born [in] 2003 to the applicant mother Ms Fredericks at the rate of A$1,250.00 (A$625.00 in respect of each child) per calendar month.

2.

Order (1) hereof commence on 1 September 2009 and all sums of maintenance to be paid by the respondent father to the applicant mother be calculated from this date.

3.

The orders made by the court in respect of the provision of maintenance for the aforesaid children be registered for collection with the Child Support Agency pursuant to the provisions of the Child Support (Registration & Collection) Act 1988.

4.

The respondent father pay the sum calculated pursuant to these orders to the Registrar of the Child Support Agency on the 15th day of each month commencing on 15 July 2012.

5.

The amount currently standing to the credit of the respondent father in case number 254210011 (A$34,984.18) be utilised by the Registrar of the Child Support Agency to discharge arrears of maintenance arising under order (1) hereof.

6.

The respondent father pay whatever arrears remain outstanding pursuant to order 1 hereof after the calculation envisaged by order (5) hereof has taken place at the rate of A$50.00 per month with the payment of arrears to be made concurrently with the order for child maintenance pursuant to order (1) hereof.

7.

The portion of the maintenance payment attributable to each of the children pursuant to order (1) hereof cease on that child attaining the age of eighteen (18) years or in the event that child becomes financially self supporting by reason of entering the paid workforce on a full-time basis or ceasing full-time secondary or tertiary education.

8.

The rate of maintenance to be paid pursuant to order (1) hereof be indexed to reflect changes in the Consumer Price Index published for Adelaide in the final quarter of each financial year commencing with the final quarter in the financial year ending 30 June 2013.

9.

The respondent father be entitled to spend the twenty-one (21) days of time with the children during the December/January school holiday provided to him pursuant to order (4)(c) and (d) and order (5)(f) and (g) of the orders of the Family Court made 12 February 2009 in [Q].

10.

In order to give effect to order (9) hereof order (25) of the orders made on 11 February 2009 by which the children’s names were placed on the Pass list is suspended to enable the children to depart from the Commonwealth of Australia in order to travel to [Q].

11.

The children’s travel to [Q] pursuant to order (9) hereof will be subject to the satisfaction of the following conditions:

(a) The children’s cost of travel between Australia, [Q] and return will be borne exclusively by the respondent father;

(b) The children are to be accompanied on all travel between Australia, [Q] and return by a responsible adult, who shall be one of the following:

(i) The father himself;

(ii) The children’s paternal grandmother;

(iii) The children’s paternal grandfather;

(iv) The father’s current wife;

(v) One of the children’s paternal aunts.

(c) The father will be responsible for paying all the costs of travel for the accompanying adult.

(d) The respondent father will provide to the applicant mother written notice of his intention to spend time with the children in [Q] pursuant to these orders in writing at least ninety (90) days prior to the date scheduled for the children’s departure from Australia.

(e) The respondent father provide the applicant mother with a detailed itinerary of the children’s travel outside of Australia including flight times of arrival and departure; flight numbers; addresses of accommodation at which the children will be staying; and contact details in respect of the children, particularly any relevant telephone numbers and email addresses at which the children may be contacted; with the itinerary to be provided to the applicant mother sixty (60) days prior to the date scheduled for the children’s departure from Australia.

(f) Strict compliance with the provisions of order (12) hereof regarding lodgement of security to ensure the return of the children to Australia.

12.

The paternal grandparents Mr and Mrs J are ordered to provide to the applicant mother forty-five (45) days prior to the date of the children’s proposed departure from Australia a memorandum of mortgage in registerable form in an amount of $150,000.00 in respect of their home located at Property G, in the State of South Australia.

13.

Upon the return of the children to her care in Australia, following any period of overseas travel to [Q] arising from the operation of these orders, the applicant mother is directed to return the memorandum of mortgage arising from the operation of order (12) hereof to the paternal grandparents, Mr and Mrs J.

14.

Within twenty-eight (28) days of the date of these orders, the applicant mother provide the respondent father with photocopies of the children’s current passports.

15.

The applicant mother make application for the renewal of passports issued in respect of the said children and provide the respondent father with photocopies of such updated passports within twenty-eight (28) days of having received such renewed passports.

16.

All applications be otherwise dismissed.

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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