FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAMILTON & CATALANO | [2011] FMCAfam 1454 |
| FAMILY LAW – Contested parenting application – father’s incapacity to parent children on a week on/week off basis – parties very poor communication – father’s deeply held resentment of the mother – father’s inability to accept broken wedding vows – father undermining children’s relationship with the mother – property matters – weight to be attributed to wife’s inheritance which crystalised two years prior to separation – no further adjustment for s.75(2) factors. |
| Family Law Act 1975, Part VII, ss.60 CC, 61DA, 65DAA, 79(4), 75(2) |
| C & C (2005) 33 FamLR 414 In the Marriage of Hickey (2003) FLC 91-143 Ferraro & Ferraro (1993) FLC 93-335 Pierce & Pierce (1998) FLC 92-844 Williams & Williams [2007] FamCA 313 Kessey & Kessey (1994) FLC 92-495 Aleksovski & Aleksovski (1996) FLC 92-705 Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] FCA 4 Shimizu & Tanner [2011] FamCA 271 Kouper & Kouper (No 3) [2009] FamCA 1080 Norman & Norman [2010] FamCA 66 Teal & Teal [2010] FamCAFC 120 Chappel & Chappel (2008) FLC 93-382 |
| Applicant: | MS HAMILTON |
| Respondent: | MR CATALANO |
| File Number: | CSC 653 of 2008 |
| Judgment of: | Willis FM |
| Hearing dates: | 23, 24 & 25 February 2011 |
| Date of Last Submission: | 25 February 2011 |
| Delivered at: | Cairns |
| Delivered on: | 23 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Victoire |
| Solicitors for the Applicant: | Williams Graham Carman |
| Counsel for the Respondent: | Ms Benson |
| Solicitors for the Respondent: | Legal Aid Queensland |
| Counsel for the Independent Children’s Lawyer: | Mr Trevino |
| Independent Children’s Lawyer: | Vandeleur & Todd |
ORDERS
Children’s matters
The mother have sole parental responsibility for the children of the marriage [X] born [in] 1998 and [Y] born [in] 2001 (“the children”).
In exercising sole parental responsibility, the mother is to give written notice to the father in the communication book of any major long term decision she intends to make about the children’s education, religion or medical care at least 21 days prior to making such decision, and before making the decision, consider any view expressed by the father in writing received within 14 days of the notice given by the mother to the father.
The mother advise the father in writing of any major long term decision made within 7 days of making the decision.
For the purposes of these Orders, a major long term decision shall include but is not limited to, decisions about:
(a)The children’s education;
(b)The children’s religious and cultural upbringing;
(c)The children’s health;
(d)The children’s names;
(e)Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
The day to day decisions regarding the children’s care and welfare are the responsibility of the parent who has the care of the children at that time.
The children live with the father at all times as may be agreed between the parties, but failing agreement as follows:
(a)During each school term, four nights each fortnight commencing from…
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- AGLC
- Hamilton and Catalano [2011] FMCAfam 1454
- Case
- [2011] FMCAfam 1454
- Decision Date
CaseChat Overview and Summary
The court considered the welfare and best interests of the children as the paramount concern, leading to orders that granted the mother sole parental responsibility while requiring her to consult with the father on major long-term decisions. The schedule for the children’s time with each parent was detailed to ensure that the children maintain a close relationship with both parents, including specific arrangements for school terms, holidays, and special days. The court also meticulously divided the property between the parties, ensuring that the division was equitable, taking into account the contributions of each party and the needs of the children.
The court's decision resulted in a comprehensive parenting plan and property settlement. The mother was granted sole parental responsibility, with specific provisions for consulting the father on significant decisions. The children's living arrangements were detailed to maximize their time with both parents, with provisions for special occasions and communication. The property was divided with the mother receiving a larger share, and specific assets and liabilities were allocated to each party. The orders also included provisions for the sale of certain assets, payment of debts, and the management of superannuation interests.
The final orders include detailed parenting arrangements, property division, and provisions for the children's welfare, education, and communication with both parents. The court's decision ensures that the children's needs and best interests are prioritised while providing a clear framework for the parents to co-parent effectively.
Orders
Orders of the court
Children’s matters
1.
The mother have sole parental responsibility for the children of the marriage [X] born [in] 1998 and [Y] born [in] 2001 (“the children”).
2.
In exercising sole parental responsibility, the mother is to give written notice to the father in the communication book of any major long term decision she intends to make about the children’s education, religion or medical care at least 21 days prior to making such decision, and before making the decision, consider any view expressed by the father in writing received within 14 days of the notice given by the mother to the father.
3.
The mother advise the father in writing of any major long term decision made within 7 days of making the decision.
4.
For the purposes of these Orders, a major long term decision shall include but is not limited to, decisions about:
(a) The children’s education;
(b) The children’s religious and cultural upbringing;
(c) The children’s health;
(d) The children’s names;
(e) Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
5.
The day to day decisions regarding the children’s care and welfare are the responsibility of the parent who has the care of the children at that time.
6.
The children live with the father at all times as may be agreed between the parties, but failing agreement as follows:
(a) During each school term, four nights each fortnight commencing from the conclusion of school on Friday and concluding at the commencement of school on the following Tuesday;
(b) For one half of each school term holiday (not including Christmas), with the father to have the first half in odd numbered years and the second half in even numbered years subject to: either parent may elect to have the whole of a term school holiday on giving no less than 30 days written notice to the other parent with the other parent to have the whole of another term school holiday. The other parent shall advise the first parent, in writing within 14 days of receiving the notice, which term school holiday he or she has selected to have with the children;
(c) For three weeks in the Christmas school holidays, to be taken in 2 blocks (2 weeks and 1 week) subject to the following conditions:
(i) The mother is to give the father written notice no less than 30 days prior to the end of Term 4 of any travel plans the children have for the Christmas school holidays;
(ii) The father is to give the mother written notice 14 days prior to the end of Term 4 of the dates of the weeks he proposes to have the children in his care, and this time is to be taken so as not to interfere with the children’s plans notified to the father by the mother pursuant to Order 6c(i).
(iii) In the event that the father wishes to travel away with the children in the year following the mother exercising travel plans pursuant to Order 6c(i), provided the father gives the notice referred to in these Orders, the mother will ensure that the father’s travel plans are not interrupted by her proposed plans in each alternate year.
(d) Provided the children are in the same locality as the father:
(i) From 7:00pm Christmas Eve until 10:00am Boxing Day in even numbered years and each alternate year thereafter;
(ii) For mass on Christmas Day, provided the mass is conducted at a registered Church.
7.
The children live with the mother at all other times.
Special days
8.
If the children are living with the mother at the relevant times referred to herein, then the mother shall permit the children to spend time with the father as follows:
(a) For one half of each of the children’s birthday and if the birthday shall fall on a school day then from after school to 6:30pm on that day;
(b) For the whole of the father’s birthday if not a school day and otherwise from after school to 6:30pm;
(c) For the whole of Father’s Day.
9.
If the children are living with the father at the relevant times referred to herein, then the father shall permit the children to spend time with the mother as follows:
(a) For one half of each of the children’s birthdays and if the birthday shall fall on a school day then from after school to 6:30pm on that day;
(b) For the whole of the mother’s birthday if not a school day and otherwise from after school to 6:30pm;
(c) For the whole of Mother’s Day.
10.
Either parent may communicate with the children by telephone at any reasonable time before 8:00pm.
11.
The children be permitted to telephone the parent who does not have the care of the children at all reasonable times before 8:00pm.
12.
Each parent is to do all acts and things to ensure that the children continue to attend all extra curricular activities that they are enrolled in when spending time with either parent.
13.
Changeovers will occur at school whenever possible and on non-school days, at such place as the parties may agree upon but failing agreement at the Food Court, [shopping centre omitted].
14.
The mother is to forthwith authorise the children’s school to provide to the father the same information as the school provides to the mother.
15.
If either party travels away with the children from his or her normal place of abode during any school holiday period, he or she shall provide the other no less than 14 days prior to the date of departure an itinerary including dates of departure and return, details of any air travel involved and contact details for the children.
16.
The mother and father will do all acts and sign all things necessary as and when requested to do so to apply for passports for the children as and when their passports fall due for renewal. In the event that either party fails to sign the passport application when requested to do so by the other parent, the Registrar is authorised to sign the passport application pursuant to Order 38 herein and such passport is to issue notwithstanding that one parent has not signed the application.
17.
The mother shall meet the costs of obtaining the children’s passports.
18.
The mother shall retain possession of the children’s passport.
19.
The children are permitted to travel from Australia either with the mother or as part of an excursion organised by their school subject to the following conditions:
(a) The mother shall provide to the father:
(i) Written notice of the proposed travel not less than 60 days before departure, including details of:
A. The purpose of the travel;
B. The approximate dates of travel;
C. Destinations;
D. The means of travel; and
E. Accommodation arrangements.
(ii) A copy of the following not less than 14 days before departure:
A. Travel itinerary;
B. Contact numbers for the children while travelling;
C. The return ticket for the children.
(b) The children shall not be absent from Australia for longer than 4 weeks on any occasion of international travel, without agreement of the father or Order of this Court.
(c) The mother, if travelling with the children, shall facilitate the children speaking to the father by phone at least once every 7 days the child is overseas.
20.
The mother is to facilitate make up time between the travelling child and the father upon the child’s return to Australia, such make up time to commence the weekend following the child’s return and is to be taken in the form of adding 1 extra night to each regular block time.
21.
Each parent is restrained and an injunction issue restraining each parent from denigrating the other parent in the presence or hearing of the children.
22.
Each party shall notify the other of any significant medical treatment, hospitalisation or serious illness of the children, whilst in their care as soon as practicable, commensurate with the level of seriousness.
23.
The parties shall keep each other advised at all times of their current residential address and telephone number.
24.
Each parent shall forthwith enrol in and complete a “Focus on Kids” Course and provide a copy of the Certificate of completion to the other parent.
25.
The Independent Children’s Lawyer is discharged.
Property matters
26.
The property of the parties be divided as to 75% to the wife and 25% to the husband. To effect this division:
27.
The Wife do all acts and things necessary to sell the family artwork comprising the following:-
(a) Painting by [omitted], titled “[1]”
(b) Painting by [omitted], titled “[2]”
(c) Untitled painting by [omitted] ([3])
28.
Upon the sale of the artwork the net proceeds of sale after payment of all selling costs shall be divided and paid in the proportions of 75% to the Wife and 25% to the Husband.
29.
Within forty five (45) days from the date of these orders the Wife pay the sum of $8,928.00 to Centrelink in part payment of the debt owed by the Husband to Centrelink whose Centrelink reference number is [omitted].
30.
The Wife pay to the Husband within forty five (45) days from the date of these orders the sum of $13,880.00.
31.
Upon payment of the sums referred to in Orders 29 and 30 above the Wife shall be entitled to retain, free from any right, title, interest or claim by the Husband all right, title and interest in the real property situated at Property E more particularly described as Lot [omitted] and the Wife shall indemnify the Husband against all payment and liability pursuant to the mortgage registered against the title being Mortgage No. [omitted] in favour of Westpac Banking Corporation together with all rates, taxes and outgoings of or with respect to the property of whatsoever nature and kind.
Default provisions
32.
In default of payment of the amount referred to in Orders 29 and 30 above the Wife shall forthwith thereafter do all acts and things and sign all necessary documents to effect a sale of the property at Property E on the following basis:-
(a) The listing price for the real property shall be $360,000.00 unless as otherwise agreed.
(b) The real property shall be listed for sale by private treaty with such real estate agents as determined by the Wife.
(c) In the event that the real property has not been sold on or before a date three (3) months from the date of default of payment then the Wife will shall make all arrangements and do all acts and things and sign all documents necessary to cause the property to be sold by public auction upon the following terms:-
(i) The auctioneer shall be appointed by the Wife.
(ii) The auction shall take place by two (2) months after the deadline date for sale by private treaty.
(iii) The reserve price shall be, unless agreed to by the parties, as proposed by the auctioneer.
33.
Upon completion of the sale of the property the proceeds of sale shall be applied as follows:-
(a) Firstly to pay all costs, commissions and expenses of the sale including auction fees and to pay council and water rates and maintenance levies outstanding with respect to the real property.
(b) Secondly to discharge the mortgage and any other encumbrances effecting the real property.
(c) Thirdly to pay to the Husband the sum calculated in accordance with the following formula:-
[($165,343.00 + a) x 25%] - $77,455.00
Where a = the net sale proceeds of the sale of the property at Property E after payment of the amounts referred to in paragraph subparagraphs (a) and (b) above.
(d) Fourthly to pay the balance to the Wife.
34.
From the wife’s share of the net sale proceeds, the wife is to pay her share of the Centrelink debt forthwith of $8,928.00.
35.
The Husband shall be entitled to retain free from any claim by the Wife the following assets and superannuation interests and is solely responsible for making payments relevant to the following liabilities as and when they fall due and the husband will indemnify the Wife in relation to the following liabilities:-
Assets
(a) Commonwealth Bank of Australia Joint Account $15.00
(b) [T] and [M] shares $5,644.00
(c) HSBC UK Savings Account $1,683.00
(d) [G] Trust $2,017.00
Superannuation
(e) [A] Superannuation $61,018.00
(f) [M] Superannuation $9,529.00
Liabilities
(g) Balance of Family Tax Benefit overpayment to Centrelink $8,928.00
(h) Credit Union Australia Overdraft $2,024.00
(i) Commonwealth Bank of Australia MasterCard $3,868.00
(j) Accountant’s fees for pre-separation tax $3,251.00
(k) Higher Education Loan Program $4,222.00
36.
The Wife shall be entitled to retain free from any claim by the Husband the following assets and superannuation interests and is solely responsible for making payments relevant to the following liabilities as and when they fall due and the Wife will indemnify the Husband in relation to the following liabilities:-
Assets
(a) Sale proceeds of the Ford Focus motor vehicle $9,500.00
Superannuation
(b) [R] Superannuation $9,463.00
(c) [A] Superannuation $23,953.00
Liabilities
(d) Nil (other than those specifically referred to elsewhere in these Orders).
37.
That unless specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date.
(b) Money standing to the credit of the parties in any bank account is to be become the property of the person so named as the owner of the bank account.
(c) Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.
(d) All insurance policies shall become the sole property of the owner named thereunder.
(e) Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
38.
That pursuant to Section 106A of the Family Law Act 1975 the Registrar of the Federal Magistrates Court of Australia at Cairns is hereby appointed to execute all deeds and documents in the name of either party and do all acts and things necessary to give validity and operation to these Orders.
39.
Liberty to apply is relation to the mechanics of these property orders is granted.
40.
In the event that either party is seeking costs, such party should file submissions within 28 days of the date of this Order and the response to such submissions is to be filed within 28 days of being served with the Applicant’s submissions.
Background
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Decision
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