FEDERAL CIRCUIT COURT OF AUSTRALIA
| IBSEN & LABODA | [2019] FCCA 3680 |
| Catchwords: FAMILY LAW – Property settlement proceedings – application for an adjustment of property interests – relationship of seven years duration – de facto relationship – jurisdiction established – just and equitable to adjust property interests – consideration of parties’ financial and non-financial contributions at beginning, during and following end of relationship substantial – where asset pool modest – where superannuation significant – add backs – where money advanced by way of gift to parties by paternal mother – where respondent receives substantial inheritance – where liabilities in issues – where parties seek adjustment of single pool – applicable principles – disparity – orders for adjustment made. FAMILY LAW – Spousal maintenance – where respondent claims weekly or alternatively lump sum spousal maintenance – where respondent has bequest of significant inheritance – whether respondent unable adequately to support herself – where parties means are modest – whether applicant has paid child support as assessed and re-assessed – whether applicant reasonably able to maintain the respondent – applicable principles – where application for spousal maintenance to be considered following the determination of application for adjustment of property interests – respondent not cross-examined – application dismissed. CHILD SUPPORT – Application for departure from administrative assessment of child support – where child support has been assessed and is being paid – where respondent seeks administrative re-assessments of child support – where respondent pays child support as re-assessed – where respondent advances claim for departure from administrative assessment of child support, progressively seeking 100%, 60% and then 50% of children’s school fees, educational expenses, extracurricular activities, private health and all expenses not covered by private health – where delay in seeking application – applicable principles – where no special circumstances are shown – where no relevant grounds made out – where delay would otherwise have been relevant – application dismissed. |
| Legislation: Child Support (Assessment)Act 1989 (Cth), ss.3, 4, 5, 19, 99, 116, 117, 118 |
| Cases cited: Amero & Croft [2010] FamCAFC… |
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- IBSEN & LABODA [2019] FCCA 3680
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- [2019] FCCA 3680
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CaseChat Overview and Summary
The court was required to determine several legal issues. In relation to parenting, the court had to decide on appropriate orders for equal shared parental responsibility, residence, and time spent with each parent, as well as provisions for communication, overseas travel, and other parenting matters, including the removal of the children from the Family Law Watch List. The court also had to determine the parties' respective property interests, considering their financial and non-financial contributions, and whether an adjustment was just and equitable. Furthermore, the court was asked to consider the mother's claim for spousal maintenance and the father's application for departure from an administrative assessment of child support.
The court's reasoning in parenting matters was guided by the paramount consideration of the children's best interests, as mandated by section 60CA of the *Family Law Act 1975* (Cth). The court acknowledged the broad discretion conferred by section 65D, which must be exercised judicially and in accordance with the objects and principles of section 60B. The court considered the primary considerations under section 60CC(2), namely the benefit of a meaningful relationship with both parents and the need to protect the children from harm, as well as the additional considerations under section 60CC(3). In property settlement, the court found it just and equitable to adjust the property interests, considering the parties' contributions and the modest asset pool. The mother's applications for spousal maintenance and departure from child support assessment were dismissed, with the court finding no special circumstances or relevant grounds to depart from the administrative assessments, and noting the mother's receipt of a significant inheritance.
The court made detailed orders regarding parenting, including equal shared parental responsibility, with the children to live with the mother and spend time with the father according to a specified schedule. Provisions were made for communication, overseas travel with conditions including notice periods and security for the mother's travel, and the removal of the children from the Family Law Watch List. In property settlement, the proceeds of sale of a property were divided, with specific amounts allocated to each party and a percentage split of any residue. Other property was to be retained by each party. The mother's applications for spousal maintenance and child support departure were dismissed. All previous orders were discharged.
Orders
Orders of the court
Parenting
1.
Save as otherwise provided in these Orders, the Applicant/Father, Mr Ibsen (the father), and the Respondent/Mother, Ms Laboda (the mother), have equal shared parental responsibility with respect to all decisions about major long-term issues in relation to the children:
(a) X, born … 2009; and
(b) Y, born … 2014, (the children).
2.
For the avoidance of doubt, major long-term issues are issues about the care, welfare and development of the children which are of a long-term nature and include, but are not limited to:
(a) the children’s education, both current and future; and
(b) the children’s religious and cultural upbringing; and
(c) the children’s health; and
(d) the children’s names; and
(e) changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with either parent.
3.
In the exercise of equal shared parental responsibility, each party must make decisions about major long-term issues jointly, by consulting with the other in relation to the decision to be made, and making a genuine effort to come to a joint decision about that major long-term issue affecting the children.
4.
If the children are spending time with either party in accordance with this Order, during that time neither party need consult the other with respect to decisions made in relation to the children that are not major long-term issues.
Residence
5.
The children live with the mother.
Spend time
6.
The children spend time with the father as agreed between the mother and the father in writing and, failing agreement, as follows:
(a) during school terms, in each fortnight:
(i) in week one, from the conclusion of school on Thursday (or 9.00am if Thursday is not a school day) until the commencement of school on Monday (or 5.00pm if Monday is not a school day);
(ii) in week two, from 5.00pm on Saturday until midday Sunday;
(b) during each of the school holidays:
(i) for the first half of the school holiday period in all even numbered years; and
(ii) for the second half of the school holiday period in all odd numbered years.
(c) during the long summer school holiday period:
(i) for the first seven (7) days of the school holiday period, and each alternate seven (7) days thereafter in all even numbered years; and
(ii) for the second seven (7) days of the school holiday period, and each alternate seven (7) days thereafter in all odd numbered years.
7.
For the purposes of paragraph (6) of this Order:
(a) the school holiday period is taken to commence at the conclusion of school on the last day of the school term and, if different for either of the children, the later date;
(b) the school holiday period is taken to conclude at the commencement of school on the first day of the following school term and, if different for either of the children, the earlier date;
(c) if the children are spending time with the father on the last week of the long summer school holiday period, the children’s time with him conclude at 5.00pm on the day before they commence school on the first day of term one, and, if different for the children, the earlier date;
(d) if a term one, term two, or term three school holiday period has an uneven number of nights, the children’s time with the:
i) father be extended by one additional night in the school term holiday period in even numbered years; and
ii) mother be extended by one additional night in the school term holiday period in odd numbered years;
(e) the fathers’ time described in paragraph 6(a) of this Order is suspended at the commencement of all school holiday periods and will resume at the conclusion of all school holiday periods;
(f) for the avoidance of doubt, the children will remain with the mother at all times when they are not spending time with the father during a school holiday period.
8.
The children spend special occasions with the mother and the father as agreed between them in writing and, failing agreement, in accordance with this paragraph (8) of this Order and all other time pursuant to this Order is suspended to facilitate same:
(a) for the Christmas period as follows:
i) with the father, in all even numbered years, from midday on Christmas Eve until 11.00am on Christmas Day;
ii) with the mother, in all even numbered years, from 11.00am on Christmas Day until 4.00pm on Boxing Day;
iii) with the mother, in all odd numbered years, from midday on Christmas Eve until 11.00am on Christmas Day;
iv) with the father, in all odd numbered years, from 11.00am on Christmas Day until 4.00pm on Boxing Day.
(b) for the Easter period as follows:
i) with the father, in all even numbered years, from 5.00pm on the Thursday before Easter until 10.00am on Easter Sunday;
ii) with the mother, in all even numbered years, from 10.00am on Easter Sunday until 5.00pm on Easter Monday.
iii) with the mother, in all odd numbered years, from 5.00pm on the Thursday before Easter until 10.00am on Easter Sunday;
iv) with the father, in all odd numbered years, from 10.00am on Easter Sunday until 5.00pm on Easter Monday.
(c) if the children are not already in the father’s care, the children spend time with the father on Father’s Day from 10.00am until 8.00pm.
(d) if the children are not in the mother’s care, the children spend time with the mother on Mother’s Day from 10.00am until 8.00pm.
(e) on each of the children’s birthdays, the children spend time with the parent with whom they are not otherwise due to spend time, from 4.00pm until 8.00pm.
(f) on the father’s birthday, the children spend time with the father from:
i) 4.00pm until 8.00pm on school days; and
ii) 10.00am until 8.00pm if non-school days.
(g) on the mother’s birthday, the children spend time with the mother from:
i) 4.00pm until 8.00pm on school days; and
ii) 10.00am until 8.00pm on non-school days.
Changeover
9.
Changeover occur as agreed between the mother and the father in writing and, failing agreement, as follows:
(a) on school days, at the children’s school(s);
(b) on non-school days at:
(i) the mother’s residence at the commencement of the children’s time with the father; and
(ii) the father’s residence at the commencement of the children’s time with the mother; and
(iii) each of the mother and the father may arrange for a nominee to deliver or collect the children for the purpose of changeover provided that the nominee is an adult and is known to the children.
Communication
10.
Each party have telephone/Skype or any other communication with the children at all such times which are suitable to the children’s routines and the children will be at liberty to communicate with either parent at all such times as either child may express a wish to do so and the parent with whom the children are then spending time shall facilitate that communication and afford the children privacy during that communication.
11.
For the purposes of communication about parenting matters, the parties use a downloadable application relating to parenting arrangements such as My-Mob, to be used only by the parents who are restrained by injunction from permitting any third-party to use such application or intervene in their communications.
12.
The applicant and respondent immediately inform each other should either child sustain any serious illness or injury while in their care and keep the other properly informed as soon as is reasonably practicable of the diagnosis, treatment and prognosis, together with the name, address and contact details of the person[s] providing treatment and the location at which the ill or injured child is receiving such treatment.
Overseas travel
13.
The application by paragraph 17(b) of the father’s Fourth Further Amended Initiating Application filed on 13 March 2019, seeking that the names of the children be maintained on the Family Law Watch List be dismissed, and it is requested that the Australian Federal Police immediately give effect to this Order by forthwith removing the names of the said children from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia (the parties being authorised to provide a copy of this Order to the Australian Federal Police for this purpose).
14.
The parties do all acts and things and sign and/or execute all documents required to obtain an Australian passport for each of the children within one (1) month of the date of this Order and, thereafter, renew that passport as required (but no later than six (6) months prior to their respective expiry dates) from time to time, with each party paying one-half of the cost of obtaining or renewing the children’s passports on each occasion.
15.
Either party may temporarily take the children outside of the Commonwealth of Australia upon the following conditions being met:
(a) the travelling parent giving the non-travelling parent at least sixty (60) days’ written notice, either by email or text message, of their intention to travel, including the proposed dates and countries of travel;
(b) the travelling parent must be provided with the children’s passports for the purpose of travel at least forty-five (45) days prior to the proposed departure date;
(c) at least twenty-eight (28) days prior to the proposed departure date, the travelling parent provide the non-travelling parent with:
(i) a copy of any return airline ticket to be used by the children; a copy of a travel insurance policy covering the travelling parent and the children;
(ii) a contact telephone number and the address(es) at which the children can be contacted throughout the period of travel; and
(iii) an itinerary, including at least the proposed dates of travel and the countries to which it is proposed the children will be travelling.
(d) the travelling parent paying all costs associated with the travel;
(e) except as otherwise provided in this Order, the travel period be of no longer than four (4) weeks’ duration on each occasion; and
(f) the travelling parent advising the other parent of any changes to the proposed itinerary and travel arrangements forthwith.
16.
During all periods of non-travel, the father hold the children’s passports.
17.
During any periods of travel (national or international), the non-travelling parent may contact the children by telephone, Skype or other digital or electronic means on at least two (2) occasions per week.
18.
Subject to paragraphs (15), (19) and (20) of this Order, the mother be at liberty to travel outside of the Commonwealth of Australia’s with the children for a period of four (4) weeks’ duration between one of the following, at her election:
(a) 1 June 2020, and 1 August 2020; or
(b) 1 June 2021, and 1 August 2021.
19.
Any period of travel pursuant to paragraph (18) of this Order is conditioned upon the respondent no later than 30 days before such proposed travel:
(a) lodging with the Registrar of the Federal Circuit Court of Australia, a sum of $10,000 by way of security for the safe return of the children and the costs of any application for their recovery and forthwith providing a copy of the receipt for that payment to the applicant;
(b) providing the applicant with a written undertaking, witnessed by a legal practitioner, that she will return the children to the Commonwealth of Australia not later than 30 days after her departure for such travel and further undertaking that, upon their return, she will provide the children promptly with make-up time with their father.
20.
The said security to be deposited pursuant to paragraph (19) of this Order be released to the respondent upon the return of the children from such travel and the provision of their passports to the applicant.
Other parenting issues
21.
Each of the parties will, at all times:
(a) keep the other party informed of his/her contact details within fourteen (14) days of any change occurring, including any change to a residential address, landline or mobile telephone number and email address;
(b) keep the other party informed of the names and addresses of any treating medical or any other allied health practitioner/s, including psychologists and counsellors, who treat the children and authorise such practitioner/s to provide the other party with all information that they are lawfully able to provide to parents about the children;
(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner/s to release information concerning the said condition, health issue or illness to the other parent;
(d) authorise the principal of the school/s attended by the children from time to time to provide to the other party all information ordinarily provided by the school/s to parents of students, at the cost of the party (if any);
(e) ensure that the children are not restrained from approaching and/or communicating with the other parent if both parties are in attendance at a school or extra-curricular event with the children as described in paragraph (22) of this Order.
22.
Each of the parties be at liberty to attend at the children’s school(s) at any time but not limited to all events that are routinely attended by parents being parent teacher interviews, sporting events, school productions or extra-curricular activities, and each will notify the other party in writing of their intention to attend any such scheduled school or extra-curricular event no less than 72 hours prior to the commencement of such event.
23.
During the time that the children spend with each of the mother or the father, each parent respectively will:
(a) respect the privacy of the other parent and not question either of the children about the personal life of the other parent;
(b) not denigrate or insult the other parent, the other parent’s partner or the other parent’s family in the presence or hearing of either of the children and use their best endeavours to ensure that others do not do so.
24.
The parties (and each of them) be and are hereby restrained, by injunction, pursuant to s 68B of the Family Law Act 1975 (Cth) (Act), from discussing this proceeding with the children or either of them or allowing any child to read any court order or document produced in this proceeding.
25.
Pursuant of s 13C(1)(c) of the Act, the parties:
(a) attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (Program) at an organisation as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry;
(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c) pay and otherwise be responsible for all costs associated with the Program; and
(d) provide an appropriate certificate of completion of the Program to the other parties’ lawyers and their lawyers.
26.
The parties be at liberty to provide this judgment to a state court.
27.
All other previous parenting orders be discharged.
28.
Pursuant to s 68P(2)(a) of the Act, to the extent any provision of this Order may be inconsistent with an Interim Intervention Order that has been made by a Magistrates’ Court (Intervention Order):
(a) this Order prevails over such order and operates according to its terms;
(b) that Intervention Order is invalid, by force of s 68Q(1) of the Act.
Property
29.
Subject to paragraph (30) of this Order, by 4.00pm on Thursday, 30 January 2020, the monies held in trust by the respondent’s solicitor representing the balance of the proceeds of sale of the property situate at Street A, Suburb B, in the State of Victoria, be divided as to:
(a) $112,010 to the applicant;
(b) $150,956 to the respondent;
(c) any residue or interest on such monies, as to 60% to the applicant and 40% to the respondent.
30.
Contemporaneously with payment pursuant to paragraph (29) of this Order, the respondent deliver possession of the Children’s passports to the applicant.
31.
Each party shall retain for their respective sole and exclusive use, enjoyment and benefit all other items of property (both real and personal, including any choses-in-action or possession, superannuation, employment benefits, insurance benefits or other financial resources) in their name, possession, control or to which they may otherwise be entitled.
32.
Unless otherwise specified in these Orders, and save for the purposes of enforcing this Order any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
33.
The father indemnify the mother, and keep her indemnified absolutely against any liability in his sole name, including but not limited to, any taxation liability arising as a result of the implementation of these Orders.
34.
The mother indemnify the father, and keep him indemnified absolutely against any liability in his sole name, including but not limited to, any taxation liability arising as a result of the implementation of these Orders.
Spousal maintenance
35.
The respondent’s applications for spousal maintenance be dismissed.
Child support
36.
The respondent’s application pursuant s 118 of the Child Support (Assessment) Act 1989 (Cth) be dismissed.
Other matters
37.
All previous orders be, and are, hereby discharged.
38.
All extant applications be otherwise dismissed.
39.
Pursuant to ss 65DA(2) and 62B of the Act, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with these Orders are set out in the Fact Sheet attached and these particulars are included in this Order.
40.
By 4.00pm on Thursday, 30 January 2020, the parties file and serve any submissions in relation to costs (not exceeding three pages, 1½ spacing, font 12), and subject to any contrary application, costs be decided on the papers.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The discretion conferred on a court by s 65D to make such parenting orders as it thinks proper is broad. In Bondelmonte v Bondelmonte,[16] the High Court said of s 65D:[16] (2017) 259 CLR 662 at [32].A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (emphasis added) The power created by s 65D confers a largely unfettered discretion, albeit one that must be exercised judicially.[17] At the same time, the court may, in the interests of consistency, provide guidelines which inform the proper exercise of discretion.[18] The ambit of the discretion explains why a court will not interfere with such orders, merely because it might have taken a different view of the matter.[19] The court’s discretion must also be exercised having regard to the objects and principles stated in s 60B.[17]Cf Norbis & Norbis (1986) 161 CLR 513, 519 (Mason and Deane JJ) 536 (Brennan J agreeing), 522-533 (Wilson and Dawson JJ).[18]Cf Morton & Berry (2014) FLC 93-613, [21]-[24] (May, Ainslie-Wallace and Watts JJ) citing Norbis.[19] CDJ v VAJ (1998) 197 CLR 172, [151]-[152] (McHugh, Gummow and Callinan JJ) However, the discretionary power conferred by s 65D(2) to make a parenting order is subject to s 65AA of the Act.[20] Section 65AA confirms that, by s 60CA, the court must have regard to the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order. By this route, the obligation in s 60CA is engaged in the exercise of power under s 65D(2). This is because an order made under s 65D is a ‘parenting order’. Further, where the court makes a parenting order for equal shared parenting responsibility, the discretion conferred by s 65D is not at large but must be exercised in accordance with the imperative requirements of s 65DA.[21][20] Reid & Lynch (2010) FLC 93-448, [232]-[233] (O’Ryan J, Finn and Strickland JJ agreeing).[21]Dundas & Blake [2013] FamCAFC 133, [56]; Mellick & Mellick [2014] FamCAFC 236, [58] (see below). In determining the best interests of a child, there are certain primary considerations which the court must take into account: sub-s 60CC(2). The court must consider: (a)the benefit to the children of having a meaningful relationship with both of their parents; and(b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s 60CC(3)(a)-(m).