JACOBOVA & STEIN - [2016] FamCA 825

FAMILY COURT OF AUSTRALIA

JACOBOVA & STEIN

[2016] FamCA 825

FAMILY LAW – CHILD SUPPORT – Arrears – enforcement – mother’s application to enforce consent order for non-periodic child support in arrears granted in part – father’s application to discharge the order refused.

FAMILY LAW – CHILDREN – Mother’s change of name application refused –disputed spend time arrangements – application for change to time spent on days of religious and cultural significance – injunction sought to prevent father travelling with child to countries that are not signatories to the Hague Convention – application for injunction refused.

Child Support (Assessment) Act 1989 (Cth), ss 117, 123, 124, 129

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 60CC(3), 60CD, 61B, 61C(3), 64B(2), 64B(2)(i), 64B(5), 65Y, 66S, 68B, 106, 109A

Family Law Rules 2004 (Cth), rr 20.01(1), 20.01(2), 20.04, 20.05(a), 20.07
Evidence Act 1995 (Cth), s 140

Beach & Stemmler (1979) FLC 96-92
Black & Kellner (1992) FLC 92-287
C & C [2007] FMCAFam 322
Chang & Su (2002) FLC 93-117
Chapman & Palmer (1978) FLC 95-10
Daniels & Bell [2007] FamCA 152
Mathieson v Hamilton [2006] FMCAfam 238
Suiter & Suiter [2014] FCWA 40
Wreford & Caley [2010] FamCAFC 21

APPLICANT:

Ms Jacobova

RESPONDENT:

Mr Stein

FILE NUMBER:

MLC

13605

2007

DATE DELIVERED:

23 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

26, 27, 28 & 29 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Davis

SOLICITOR FOR THE APPLICANT:

Lennon Mazzeo Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Mort

SOLICITOR FOR THE RESPONDENT:

Lewenberg & Lewenberg Solicitors

Orders

IT IS ORDERED BY CONSENT THAT

Paragraph 2 of the court orders made 21 November 2008 and paragraphs 14 and 15 of the consent orders made 21 November 2008 be discharged AND THE COURT REQUESTS THAT the Australian Federal Police remove the name of the child X STEIN born … 2003 (“the child”) from the Airport Watch List at all points of international arrivals and departures in Australia.

THE COURT ORDERS THAT

As soon as practicable, the Court forward a copy of these orders to the Australian Federal Police.
The mother’s application to restrain the father from travelling with the child to any country which is not a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction be dismissed.
Pursuant to rule 20.07 of the Family Law Rules 2004 (Cth) (“the Rules”), it is declared that the amount of $47,507 (“the total payment”) is an obligation to pay money and due to the mother and payable by the father under paragraph 16 of the orders made by this Court on 21 November 2008 within 60 days of today’s date;
In the event that the total amount is not paid within 60 days in accordance with paragraph (4) herein:
(a)pursuant to rule 20.05(a) of the Rules, the motorcycle in the possession of the father be seized and sold forthwith to satisfy in part the total payment;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JACOBOVA & STEIN

Details

AGLC: JACOBOVA & STEIN [2016] FamCA 825
Case: [2016] FamCA 825
Decision Date: 23 September 2016

CaseChat Overview and Summary

In this matter before Thornton J, the parties, the mother and the father, brought various applications concerning their child. The mother sought to enforce arrears of non-periodic child support, to change the child's surname to Jacobova-Stein, and to restrain the father from travelling with the child to countries not signatories to the Hague Convention. The father sought to discharge the child support order and opposed the change of surname.

The court was required to determine several legal issues. These included the enforceability of child support arrears, the appropriateness of changing the child's surname, and whether an injunction should be granted to prevent international travel with the child to non-Hague Convention countries. The court also considered applications relating to the child's time with each parent, particularly around significant religious and cultural days.

Thornton J granted the mother's application to enforce child support arrears in part, ordering that the total arrears of $47,507 be paid within 60 days. The court further ordered that if payment was not made, the father's motorcycle be seized and sold to satisfy the debt, with any balance to be paid by instalments, and that penalty interest would apply to any outstanding amounts. The mother's application to change the child's surname was dismissed. The application to restrain the father from travelling with the child to non-Hague Convention countries was also dismissed. The court also made orders suspending the child's time with the father during specific periods of Passover and the Jewish New Year, commencing from 2017. The court also requested that the Australian Federal Police remove the child's name from the Airport Watch List.

Orders

Orders of the court

IT IS ORDERED BY CONSENT THAT

Paragraph 2 of the court orders made 21 November 2008 and paragraphs 14 and 15 of the consent orders made 21 November 2008 be discharged AND THE COURT REQUESTS THAT the Australian Federal Police remove the name of the child X STEIN born … 2003 (“the child”) from the Airport Watch List at all points of international arrivals and departures in Australia.

THE COURT ORDERS THAT

As soon as practicable, the Court forward a copy of these orders to the Australian Federal Police.

The mother’s application to restrain the father from travelling with the child to any country which is not a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction be dismissed.

Pursuant to rule 20.07 of the Family Law Rules 2004 (Cth) (“the Rules”), it is declared that the amount of $47,507 (“the total payment”) is an obligation to pay money and due to the mother and payable by the father under paragraph 16 of the orders made by this Court on 21 November 2008 within 60 days of today’s date;

In the event that the total amount is not paid within 60 days in accordance with paragraph (4) herein:

(a) pursuant to rule 20.05(a) of the Rules, the motorcycle in the possession of the father be seized and sold forthwith to satisfy in part the total payment; and

(b) the balance outstanding after the proceeds of the sale of the motorcycle are paid to the mother, be paid by the father by way of instalments of $500 per week to the mother.

In the event that any instalment is not paid pursuant to paragraph (5)(b) herein, that penalty interest applies to that instalment as fixed by rule 17.03 of the Rules on any amount outstanding under the total payment.

The father keep the mother advised at all times of any change of the name and address of his employer or contractor including particulars of their previous name and address.

The child’s time with the father be suspended from 4.00 pm on the afternoon on which Passover begins (erev Pesach) until 6.00 pm two days thereafter (the day following the second Seder night) from 2017.

The child’s time with the father be suspended from 4.00 pm on the afternoon on which the Jewish New Year begins (erev Rosh Hashanah) until 6.00 pm on the day on which the Jewish New Year concludes.

10.

The mother’s application that she be permitted to change the surname of the child to Jacobova-Stein is dismissed.

11.

All extant applications are 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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