FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALSEY & JACOMBS | [2020] FCCA 136 |
| Catchwords: FAMILY LAW – Parenting – high conflict – serious allegations made – parenting orders in the best interests of child – alteration of property interests – assessment of contribution and future needs – just and equitable orders. |
| Legislation: Crimes (Sentencing Procedure) Act 1999 (NSW), s.9 |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS HALSEY |
| Respondent: | MR JACOMBS |
| File Number: | WOC 691 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 16 – 18 October 2019 & 5 November 2019 |
| Date of Last Submission: | 5 November 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 5 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ford |
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Ms Humphreys |
| Solicitors for the Respondent: | Williamson Isabella Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr White |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
Property
Within 6 weeks of the date of these Orders the Husband shall pay to the Wife the sum of $60,208.00
Simultaneously with the payment in Order 1 the Wife shall do all acts and things necessary to refinance the mortgage over the property located at A Street, Suburb B being the whole of the land contained in Folio Identifier …27 into her sole name.
Simultaneously with the refinance and payment referred to in Order 2 the Husband shall do all things necessary to transfer to the Wife his right, title and interest in the property located at A Street, Suburb B to the Wife.
Thereafter the Husband shall retain his right, title and interest in the property at C Street, Suburb D being the whole of the land contained in Folio Identifier …27.
Within 14 days the Husband shall transfer all his right, title and interest in the Motor Vehicle 1 to the Wife.
In accordance with Section 90XT(1)(a) of the Family Law Act 1975, (the Act), whenever a splittable payment within the meaning of Section 90XS of the Act becomes payable to or on behalf of Mr Jacombs from his interest in Super Fund E, Ms Halsey is entitled to be paid $107,221.00 of the splittable payment and there shall be a corresponding reduction in the amount Mr Jacombs would be entitled to receive but for these Orders.
These Orders bind the Trustee of Super Fund E.
The operative time for these Orders is four business days after the service of the Orders on the Trustee.
Parenting
All previous parenting Orders be discharged.
The Mother have sole parental responsibility for X born 2010 (‘the Child’), and:
(a)In exercising sole…
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- HALSEY & JACOMBS [2020] FCCA 136
- Case
- [2020] FCCA 136
- Decision Date
CaseChat Overview and Summary
The court was required to determine appropriate parenting orders that would safeguard the child's welfare in a high-conflict environment. This included establishing a framework for parental responsibility, outlining the child's living arrangements, and detailing the nature and supervision of the child's time with the father. Furthermore, the court had to make orders for the division of the parties' property, including real estate and superannuation interests, in a manner that was just and equitable.
In relation to parenting, the court made orders for the mother to have sole parental responsibility, with specific provisions for the father to be notified of major decisions. The child was ordered to live with the mother, and the father's time with the child was to be gradually increased over time, with progressively less supervision. The court also imposed strict communication protocols between the parents, including prohibitions on derogatory remarks and restrictions on questioning the child about the other parent. For property, the court ordered a payment from the husband to the wife, the refinancing of a mortgage into the wife's sole name, and the transfer of interests in properties and a motor vehicle. A specific order was made regarding the wife's entitlement to a portion of the husband's superannuation splittable payments.
Orders
Orders of the court
Property
1.
Within 6 weeks of the date of these Orders the Husband shall pay to the Wife the sum of $60,208.00
2.
Simultaneously with the payment in Order 1 the Wife shall do all acts and things necessary to refinance the mortgage over the property located at A Street, Suburb B being the whole of the land contained in Folio Identifier …27 into her sole name.
3.
Simultaneously with the refinance and payment referred to in Order 2 the Husband shall do all things necessary to transfer to the Wife his right, title and interest in the property located at A Street, Suburb B to the Wife.
4.
Thereafter the Husband shall retain his right, title and interest in the property at C Street, Suburb D being the whole of the land contained in Folio Identifier …27.
5.
Within 14 days the Husband shall transfer all his right, title and interest in the Motor Vehicle 1 to the Wife.
6.
In accordance with Section 90XT(1)(a) of the Family Law Act 1975, (the Act), whenever a splittable payment within the meaning of Section 90XS of the Act becomes payable to or on behalf of Mr Jacombs from his interest in Super Fund E, Ms Halsey is entitled to be paid $107,221.00 of the splittable payment and there shall be a corresponding reduction in the amount Mr Jacombs would be entitled to receive but for these Orders.
7.
These Orders bind the Trustee of Super Fund E.
8.
The operative time for these Orders is four business days after the service of the Orders on the Trustee.
Parenting
9.
All previous parenting Orders be discharged.
10.
The Mother have sole parental responsibility for X born 2010 (‘the Child’), and:
(a) In exercising sole parental responsibility for the Child, is to notify the Father of all major decisions affecting the Child which she intends to make, including but not limited to health and schooling, by email within 14 days of such a decision being made;
(b) The Father may respond to the Mother with his suggestions by email which the Mother may consider but is not obliged to act upon.
11.
The Child live with the Mother.
12.
For a period of 6 months from the date of these orders, the Child spend time with the Father, as agreed, but failing agreement as follows:
(a) Each alternate Sunday from 9:00am to 5:00pm, which such time to be supervised by F supervision agency, or such hours within 9:00am to 5:00pm as supported by the F supervision agency.
13.
Following the conclusion of the period above in Order 12, the Child spend time with the Father for the following 6 months, as agreed, but failing agreement as follows:
(a) Each alternate Sunday from 9:00am to 5:00pm, which such time to be supervised by the paternal grandparents.
14.
Following the conclusion of the period above in Order 13, the Child spend time with the Father for the following 6 months, as agreed, but failing agreement:
(a) Each alternate Saturday and Sunday from 9:00am to 5:00pm, which such time to be substantially in the presence of one or both of the paternal grandparents.
15.
Following the conclusion of the period above in Order 14, the Child spend time with the Father for the following 6 months, as agreed, but failing agreement:
(a) Each alternate Saturday 9:00am to 5:00pm Sunday, which such time to be substantially in the presence of one or both of the paternal grandparents.
16.
Following the conclusion of the period above in Order 15, and for the following 6 months, the Child spend time with the Father as agreed, but failing agreement:
(a) Each alternate Saturday from 9:00am to Sunday 5:00pm.
17.
Following the conclusion of the period above in Order 16, thereafter, the Child spend time with the Father as agreed, but failing agreement as follows:
(a) Each alternate weekend from 5:00pm Friday to 5:00pm Sunday; and
(b) For up to 4 block periods of up to 7 days each year as nominated by the Father during school holidays with such agreement not to be unreasonably withheld by the mother, provided at least 28 days’ notice is provided.
18.
In accordance with supervision requirements set out above, the Child spend time with the parties on special occasions as agreed, but failing agreement as follows:
(a) On the Child's birthday;
(i) If the Child’s birthday falls on a non-school day; with the party who the Child is not living or spending time from 9:00am to 2:00pm.
(ii) If the Child’s birthday falls on a school day; with the party who the Child is not living or spending time from after school to 5:30pm.
(b) On the parties’ birthdays;
(i) If the party’s birthday falls on a non-school day; with that party from 9:00am to 5:00pm.
(ii) If the party’s birthday falls on a school day; with that party from after school to 7:00pm.
(c) With the Father on Father's Day from 9:00am to 5:00pm.
(d) With the Mother on Mother's Day from 9:00 am to 5:00pm.
(e) At Christmas:
(i) In odd numbered years with the Father from 9:00am Christmas Eve to 2:30pm Christmas Day and with the Mother from 2:30pm Christmas Day to 5:00pm Boxing Day.
(ii) In even numbered years with the Mother from 9:00am Christmas Eve to 2:30pm Christmas Day and with the Respondent from 2:30pm Christmas day to 5:00pm Boxing Day.
(f) At Easter:
(i) In even numbered years with the Father from 9:00am Easter Saturday to 2:30pm Easter Sunday and with the Mother from 2:30pm Easter Sunday to 5:00pm Easter Monday
(ii) In odd numbered years with the Mother from 9:00am Easter Saturday to 2:30pm Easter Sunday and with the Father from 2:30pm Easter Sunday to 5:00pm Easter Monday
19.
For the purposes of changeover, the parties meet at a public location as agreed, but failing agreement, at KFC Suburb G.
20.
For the purposes of the parents communicating in respect of the time the Child spends with the Father, such communication is to occur by email unless otherwise agreed.
21.
The parties be restrained from making critical or derogatory remarks about each other or members of each other's family in the presence of the Child and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the Child's presence.
22.
The parties be restrained from questioning the Child about the other parent’s personal life, household, family or friends.
23.
The parties shall ensure to install child-appropriate safeguards on computer and computer-like devices to which the Child has access.
24.
Each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of:
(a) Any medical problems or illnesses suffered by the Child.
(b) Any medication that has been prescribed to the Child that needs to be taken while the Child is in the care of the other parent.
(c) Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the Child.
(d) Any sporting, social, school or religious functions which the Child is to attend.
(e) The residential address of the parent.
(f) An email address for the purpose of communicating in accordance with these orders.
(g) The telephone contact number for the other parent.
(h) Any other matter relevant to the welfare of the Child.
25.
The Father is at liberty to contact the Child’s school, treating doctor, psychologist or medical practitioner to discuss matters regarding the Child and obtain any information from that professional that might be requested.
26.
Within 7 days, the Father is to provide an Undertaking to the Court in the proper form that he will:
(a) attend on his treating psychologist and comply with all reasonable directions given for a period of at least one year from the date of these orders; and
(b) That he will not consume alcohol beyond the legal limit 12 hours before and during any time spent with the child.
27.
Within 7 days, the Mother is to provide an Undertaking to the Court in the proper form that she will:
(a) attend on a general practitioner for a referral to a new treating psychologist for the Child with whom the Child is to consult with alone; and
(b) will attend upon the treating psychologist, if and as directed for the purpose of Family therapy; and
(c) she will comply with all reasonable directions given for a period of at least one year from the date of these Orders, including notifying the Father should he be required to attend for the purpose of Family therapy; and
(d) cause the scheduling of such Family therapy appointments at convenient times to herself and the Father.
28.
Subject to order 31 below, on no more than one occasion every four calendar months and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly, the Father attend upon his respective treating general practitioner(s) to obtain a referral to undertake a Carbohydrate Deficient Transferrin (“CDT”) test noting that the CDT test is to be analysed using the High Performance Liquid Chromatography analysis method.
29.
Within 24 hours of receiving the test results, the Father cause a copy of the results to be sent to the solicitor for the other party (or the party themselves if self-represented) and the Independent Children’s Lawyer.
30.
The Father pay for the costs associated with the testing required of them by these Orders.
31.
The Legal Aid Commission of NSW is requested to extend the appointment of the Independent Children's Lawyer in these proceedings for a period of 12 months.
32.
Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the Applicant Mother is to have sole parental responsibility for an application to apply for, or renew an Australian Passport for the Child namely X, born in 2010, such passport shall be issued to the Mother without the consent of the Father.
33.
That pursuant to section 65Y the Mother be at liberty to remove the Child from the Commonwealth of Australia for the purposes of an overseas holiday on the basis that the holiday will not interfere with the time the Child is otherwise to spend with the Father.
34.
In the event that the Mother intends on removing the Child from the Commonwealth of Australia pursuant to Order 33 she will provide the Father with at least 60 days prior notice including providing details of the return tickets and location for the holiday.
THE COURT NOTES THAT:
A. The Court notes that the Paternal Grandparents, Ms H and Mr J, have agreed to provide Undertakings to the Court in the proper form in which they agree to adequately supervise the Child’s time with the Father where required under these Orders.
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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