FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOMBARD & FOSTER | [2015] FCCA 1499 |
| Catchwords: FAMILY LAW – Parenting – future parenting arrangements – child’s right to a voice in the proceedings – child’s right to participation in the proceedings – consideration of the role of the Independent Children’s Lawyer – failure of the Independent Children’s Lawyer to meet with the children after the release of the family report – impact upon the Court’s resources as a result of the commission of an addendum family report on the second day of hearing. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B(4), 79A, 90MT, 106A, 117 |
| Duffy & Gomes [2015] FCCA 1121 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 Other Articles cited: Ross, Nicola M, ‘Independent Children’s Lawyers: Relational Approaches to Children’s Representation’ (2012) 26(3) Australian Journal of Family Law 220-239 Legal Aid Commission of New South Wales, ‘Practice Standards for Independent Children’s Lawyers in Family Law Matters’, October 2014 Kaspiew R, Carson R, Moore S, De Maio J, Deblaquiere J, Horsfall B, Independent Children’s Lawyers Study: Final report, 2nd edition, June 2014, Australian Institute of Family Studies |
| Applicant: | MS LOMBARD |
| Respondent: | MR FOSTER |
| File Number: | PAC 1789 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 1 May 2015 |
| Date of Last Submission: | 1 May 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 1 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Matthews Folbigg Pty Ltd |
| Counsel for the Respondent: | Mr Schroder |
| Solicitors for the Respondent: | Matthews Dooley & Gibson |
| Solicitors for the Independent Children’s Lawyer: | Mr Nasti of S P Nasti & Co Solicitors |
ORDERS
By consent Ms P shall be joined as a party to the proceedings as the second Respondent.
By consent Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit “A” and “B” attached hereto.
Grant leave to the Independent Children’s Lawyer to make an application for contribution to costs as against each party in the sum of $4,028.50.
Dismiss that Application.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal…
Continue reading LOMBARD & FOSTER
Sign in free to access the full text
- AGLC
- Lombard and Foster [2015] FCCA 1499
- Case
- [2015] FCCA 1499
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of parenting orders for the children, including equal shared parental responsibility, living arrangements during school terms and holidays, and specific arrangements for Christmas and Easter periods. Further issues included the allocation of parental responsibility for enrolling and ensuring participation in specific programs for one child, ongoing engagement with a treating psychiatrist, and a framework for future dispute resolution. The court also addressed notification requirements for medical treatment and school-related information, as well as arrangements for the children's immunisation. Additionally, the court was required to determine the financial settlement between the parties, including the payment of a sum of money, the transfer of interest in the former matrimonial home, and the refinancing of its mortgage. The division of proceeds from the sale of the property, allocation of superannuation interests, and the transfer of interests in trusts and companies were also key issues.
The court's reasoning and the legal principles applied were primarily based on the parties' executed Terms of Settlement, indicating a consensual resolution of the disputes. The parenting orders reflected an agreement for equal shared parental responsibility and detailed living arrangements designed to ensure the children spend time with both parents. The financial orders addressed the division of assets, including the former matrimonial home and superannuation interests, in accordance with the Family Law Act 1975 (Cth), particularly sections relating to property adjustment and superannuation splitting. The court also incorporated provisions for dispute resolution and compliance mechanisms, including the appointment of the Registrar to execute documents if necessary and the potential setting aside of orders in specific circumstances of non-compliance. The overall outcome was a comprehensive set of orders aimed at finalising the parenting and financial matters between the parties.
Orders
Orders of the court
1.
By consent Ms P shall be joined as a party to the proceedings as the second Respondent.
2.
By consent Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit “A” and “B” attached hereto.
3.
Grant leave to the Independent Children’s Lawyer to make an application for contribution to costs as against each party in the sum of $4,028.50.
4.
Dismiss that Application.
5.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
6.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
7.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
EXHIBIT ‘A’
1.
That all prior parenting Orders are discharged.
2.
That the parents shall have equal shared parental responsibility for the care of the children, namely:
(a) X (DOB: (omitted) 2003)
(b) Y (DOB: (omitted) 2005)
(c) Z (DOB: (omitted) 2009).
3.
During school term and each of the short school holiday periods the children shall live with the parents on a week about basis with changeover to occur from after school each Friday or 4pm during school holiday periods.
4.
During Christmas school holidays:
(a) The children shall live with the mother for the first half of all Christmas school holiday periods that commence in years ending in an even year and the 2nd half of all Christmas school holiday periods that commence in years ending in an odd number.
(b) The children shall live with the father for the first half of all Christmas school holiday periods that commence in years ending in an odd number and the for the 2nd half of all Christmas school holiday periods that commence in years ending in an even number.
5.
That the children shall spend alternate Christmas periods with the mother commencing 4pm Christmas Eve to 4pm Christmas day in all years ending in an odd year and the father to have the children for the same period in all years ending in an even number.
6.
That the children shall spend alternate Christmas periods with the mother commencing 4pm Christmas Day until 4pm Boxing Day in all years ending in an even number and the father to have the children for the period in all years ending in an odd number.
7.
The children shall live with the mother from 4pm Easter Saturday until 4pm Easter Sunday in years ending in an odd number.
8.
The children shall live with the father from 4pm Easter Saturday until 4pm Easter Sunday in years ending in an even number.
9.
In the event that the Mother’s Day weekend falls on a weekend when the children are not otherwise in the care of the mother and in the event that the Father’s Day weekend falls on a weekend when the children are not otherwise in the care of the father, the children shall spend the Mother’s Day weekend with the mother and the children shall spend the Father’s Day weekend with the father. For the purpose of this Order the time shall be from 4pm on the Saturday until 4pm on the Sunday of that weekend.
10.
Changeover shall take place at school or as agreed, in writing, but in the event of a non-school day or in the absence of agreement on a non-school day, changeover shall take place by the parent into whose care the children are coming, collecting the children from the home of the other parent.
11.
Within 7 days of the date of these Orders the parties shall do all acts and things necessary to enrol X in the “Anchor program” conducted by Unifam in (omitted) or some other agreed service provider and both parties shall ensure that X is taken to all intake interview and appointments for the purposes of that program.
12.
Both parties shall ensure that X completes the program in accordance with the requirements of the service provider.
13.
So far as it is required by the service provider the parents will participate in the “Anchor program”.
14.
Within 7 days of the date of these Orders the parties shall do all acts and things necessary to enrol in the “Keeping Contact” program conducted by the service provider who X has seen or is seeing for the “Anchor Program” provided for in Order 11.
15.
Both parties shall ensure that they attend all intake interviews and appointments for the purposes of the “Keep in Contact” program.
16.
Both parties shall ensure that they complete the “Keep in Contact” program in accordance with the requirements of the service provider.
17.
The mother shall continue to engage with Dr R or such other treating psychiatrist for such times and at such frequency as might be reasonably requested by the Doctor.
18.
In the event that the parties are unable to agree on an issue relating to the children they will initially engage in Family Dispute Resolution with the assistance of the service provider that conducted the Anchor Program referred to in Order 11, or if that service is unavailable, with an authorised Family Dispute Resolution practitioner.
19.
That each party as soon as practicable notify the other party of any admission by any of the children to a hospital or treatment by a medical practitioner (save as for common ailments) and to provide the said hospital or medical practitioner with all consents necessary for the other party to examine any medical records in relation to the said children.
20.
These Orders shall operate as the necessary authority to the children’s pre-school and/or children’s schools for the school to forward to each parent copies of all school reports and notices in relation to parent teacher interviews, school photographs, concert nights, award presentations, open days, speech nights and sporting events.
21.
That each party keep the other party advised, in writing, of any new residential address within seven (7) days prior to change and any new telephone number within seven (7) days after change.
22.
Within 14 days the parties shall arrange to and then attend upon Dr G and obtain a referral to an allergist for each of the children for the purposes of the children being immunized by vaccine.
23.
Thereafter the parties shall arrange the first available appointment with the allergist referred to in Order 22 with a view to that practitioner administering the children’s vaccinations at a rate and frequency recommended by that practitioner.
24.
The parties are to ensure that the vaccinations administered to the children will be in accordance with the recommendations of the NSW Department of Health for children for the prevention of diseases as specified by that Department.
25.
Each of the parents shall ensure that the children attend upon all scheduled appointments with the allergist to ensure that Orders 23-24 are complied with.
26.
On a “without admissions” basis and in the event that either party fails to comply with Orders 22, 23, 24 or 25 the compliant parent shall have sole parental responsibility for the administration to the children of the vaccinations recommended by the NSW Department of Health with such vaccinations to be administered in accordance with these Orders.
27.
Both parties are restrained from denigrating the other parent, a member of their family or household in the presence or hearing of the children, or any of them, and shall immediately remove the children from the presence or hearing of any third party who does so.
NOTATIONS
A. The parties agree that moving forward they are committed to co-parenting in a way that benefits their children and will ensure that they communicate respectfully in relation to all parenting issues that might arise between them.
B. The parties note that the optimum manner of parenting children after separation is to:
· Reassure your children that you both still love them;
· Remember that accepting and dealing with the separation will enable you to better assist your children to do the same;
· Allow your children the right to love both of you – don’t make them choose;
· Tell your children that they are not to blame and help them to discuss their feelings – they often blame themselves, especially when parents fight about them or things they have done;
· Listen sympathetically to your children’s feelings and opinions without judgement;
· Talk with the other parent about issues relating to your children;
· Make sure your children don’t hear or see you fighting;
· Keep your children out of your arguments with or about the other parent;
· Be positive about the other parent when talking to your children;
· Turn to other adults for emotional support rather than to your children;
· Talk with your children’s teachers so they understand the situation keeps your focus on your children’s well-being rather than on what is ‘fair’ for you.
Both are committed to parenting the children in this way.
EXHIBIT ‘B’
1.
That the Husband pay to the Wife the sum of $170,000 within two (2) months of the date of these Orders.
2.
That upon the payment pursuant to Order 1 herein the Wife transfer to the Husband all her right, title and interest in the former matrimonial home situated at and known as Property R being the land described in Folio Identifier (omitted) (hereinafter referred to as “the Property R property”) by providing to the other party a duly stamped and executed Memorandum of Transfer.
3.
That upon the transfer in accordance with Order 2 herein the Husband refinance the mortgage over the former matrimonial home into his name solely. The husband shall be responsible for all outgoings of the property, shall indemnify and keep indemnified the wife as to the same.
4.
That should the husband fail to pay the amount specified in Order 1 herein within the time stipulated then each party immediately do all acts and things and sign all documents necessary to list the property for sale by private treaty with a real estate agent agreed between the parties and at a price agreed between the parties or failing agreement within fourteen (14) days after the failure to comply with Order 1 herein then as determined by the President from time to time of the New South Wales Division of the Real Estate Institute of Australia or his nominee as an expert not as arbitrator.
5.
That if the said property is not sold within three (3) months after the date of listing pursuant to Order 4 herein then each party forthwith do all acts and things and sign all documents necessary to list the said property for sale by public auction with an auctioneer agreed between the parties and at a reserve price agreed between the parties or failing agreement as determined by the President from time to time of the New South Wales Division of the Real Estate Institute of Australia or his nominee as an expert not an arbitrator on the following conditions:
(a) That the Husband and Wife each pay one half of the fees payable to such auctioneers immediately upon request by such auctioneers;
(b) That the parties attend the auction sale and in the event that the reserve price is not received negotiate with the highest bidder;
(c) That each party co-operate in every way with the auctioneers in relation to the auction of the said property;
(d) That each party execute all documents necessary to complete the sale;
6.
In the event that the property is not sold by public auction as provided for above then the property is to be relisted on the market for sale by private treaty with a real estate agent agreed between the parties and at a price agreed between the parties or failing agreement within fourteen (14) days after the auction then as determined by the President from time to time of the New South Wales Division of the Real Estate Institute of Australia or his nominee as an expert not as an arbitrator.
7.
That the proceeds of sale of the former matrimonial home be disbursed as follows:
(a) In payment of the costs of sale including real estate agent's fees, legal fees and auctioneer's fees, if any;
(b) In payment of the mortgage to (omitted) Bank;
(c) In payment of any rate adjustments as at the date of sale;
(d) In payment of 22% of the balance to Ms P;
(e) In payment to the Wife of 55% of the balance of the proceeds of sale;
(f) In payment of the balance to the Husband.
8.
That the Court allocate, pursuant to Section 90MT(4) of the Family Law Act 1975 a "base amount" of $25,000.00 to the Wife out of the Husband's interest in the (omitted) Super, (omitted) Super Plan.
9.
That in accordance with Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittible payment becomes payable from the Husband's interest in the (omitted) Super – (omitted) Super Plan the Trustee of the (omitted) Super – (omitted) Super Plan shall pay to the Wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the "base amount" of $25,000.00 and that there be a corresponding reduction in the entitlement that the Husband would have in the (omitted) Super – (omitted) Super Plan but for these Orders.
10.
That the operative time for Order 9 be four (4) business days from the date a sealed copy of these Orders is served on the Trustee of the (omitted) Super – (omitted) Super Plan.
11.
That Order 9 takes effects from the operative time.
12.
That pursuant to Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittible payment becomes payable in respect of the Husband's interest in the (omitted) Fund (“the self-managed superannuation fund), the Wife shall be entitled to be paid an amount calculated in accordance with the Regulations, using a base amount at the date of these Orders in the sum of $145,936.00 and there be a corresponding reduction in the entitlement the Husband would have had in the (omitted) Fund but for this Order.
13.
That the Husband shall do all things necessary, but not limited to exercising his request for the transfer of the sum of $145,936.00 from the (omitted) Fund to a fund of the Wife's choice.
14.
That having been accorded procedural fairness, these Orders bind the Trustee to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
15.
The operative time for these Orders is four (4) business days from the date a sealed copy of these Orders is served on the Trustee of the (omitted) Fund.
16.
The Husband as Trustee of the (omitted) Fund acknowledge that he has been accorded procedural fairness.
17.
That within twenty one (21) days of the date of these Orders the Wife shall resign as a Trustee of the (omitted) Fund and the Husband shall otherwise indemnify the Wife in relation to all claims and demands arising from her management of and membership of the fund.
18.
That within twenty eight (28) days of the date of these Orders the Wife sign all documents and do all things necessary to assign to the Husband her interest in the Foster and Lombard Family Trust.
19.
That within twenty eight (28) days of the date of these Orders the parties sign all documents and do all things necessary to deregister, (omitted) Pty Ltd and (omitted) Pty Ltd and the husband shall be responsible for the costs associated with this.
20.
That each party be declared the sole owner in law and equity of motor vehicles, all items of personalty, chattels and financial resources in their name, possession or control and not otherwise deal with in these Orders including but not limited to bank accounts, any choses in action and superannuation benefits.
21.
That in the event that either party refuses or neglects to execute any deed or instrument the Registrar or Deputy Registrar of the Court making these Orders is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument upon being satisfied by Affidavit of such neglect or refusal. A party shall be deemed to be in default if that party refuses or neglects to sign any document within seven (7) days of being requested to execute that document, such request being made in writing.
22.
That the parties be hereby granted leave to restore this matter to the list on seven (7) days’ notice with respect to the implementation of these Orders.
23.
The Court notes and the parties agree that the majority of the funds necessary to satisfy Orders 12-14 are located outside of the Commonwealth of Australia and will need to be repatriated to satisfy these Orders.
24.
The husband shall do all acts and things necessary including signing any documents to ensure the funds necessary to comply with Orders 12-14 are repatriated to the Commonwealth of Australia so as comply with these Orders.
25.
If in fact the funds necessary to satisfy Orders 12-14 are not repatriated to Australia in compliance with these Orders, the wife shall be paid interest on the outstanding monies with such interest to be calculated in accordance with the Act.
26.
In the event that there is noncompliance with Orders 12-14 within 6 months of the date of the making of these orders these orders shall be set aside pursuant to Section 79A of the Family Law Act 1975 (Cth).
27.
The Court notes and the parties agree that these Orders provide for the wife to receive 55% of the assets of the parties.
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
Full text does not contain this section.