FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAHER & WALSH (No.2) | [2019] FCCA 1940 |
| Catchwords: FAMILY LAW – Binding child support agreement – enforcement. |
| Legislation: Family Law Act1975 |
| Applicant: | MS MAHER |
| Respondent: | MR WALSH |
| File Number: | BRC 9510 of 2012 |
| Judgment of: | Judge Demack |
| Hearing dates: | 20, 21 & 23 May 2019 |
| Date of Last Submission: | 23 May 2019 |
| Delivered at: | Rockhampton |
| Delivered on: | 11 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Shoebridge |
| Solicitors for the Applicant: | Murdoch Lawyers |
| Solicitors for the Respondent: | Self-Represented Litigant |
ORDERS
THE COURT ORDERS ON A FINAL BASIS:
Parenting
That all previous Orders are discharged that are inconsistent with these Orders.
Parental Responsibility
That the Mother is to have sole parental responsibility for the long term care, development and welfare of the children, namely X born … 2006 and Y born … 2007 (‘the children’), including any and all issues pertaining to:
(a)Schooling & extra-curricular activities;
(b)Medical and mental health treatment,; and
(c)International travel & passport issue/renewal.
That notwithstanding Order 2, the Mother shall keep the Father informed as to any decisions she has made for the children in relation major long-term issues as defined in s4, Family Law Act 1975.
Living Arrangements
That the children shall live with the Mother.
That the children shall spend time with the Father at all times as may be agreed in writing, and in the absence of agreement:
(a)Each alternate week from after school Friday until the commencement of school Monday, with such time to commence on the Friday which aligns with the arrangement presently in place.
That if the children's school is closed on any day on which changeover is to occur, the children shall remain in the care of the parent they are living with on that day until 3:00 pm.
That each parent will give the other party the first opportunity to care for the children if they are unable to care for the children for a period greater than 8 hours unless that care is to be provided by an immediate family member.
That pursuant to order 7, each party shall provide a minimum of two weeks’ notice in writing to the other parent if they are unable to care for the children, unless in an emergency.
That the Father shall be solely responsible for the daily care, welfare and development of the children when they are in the care of or spending time with him.
That the Mother shall be solely responsible for the daily care, welfare and development of the children when they are in the care of or spending time with her.
Changeovers
That subject to Order 6 and unless otherwise agreed, the children shall be collected and delivered for the purposes of parenting arrangements as follows :
(a)The Father is to collect the children from the children's school at the commencement of any period when the children are to live with or spend time with him; and
(b)The Father…
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- MAHER & WALSH (No.2) [2019] FCCA 1940
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- [2019] FCCA 1940
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CaseChat Overview and Summary
The court was tasked with determining the primary caregiver for the children and establishing a parenting schedule that addressed their living arrangements, time with each parent, school holidays, and special occasions. Furthermore, the court had to consider issues of parental responsibility, communication between the parents, and the practicalities of medical and schooling arrangements. A significant legal issue was the enforcement of a binding child support agreement, including the calculation of arrears and the mechanisms for their recovery.
In relation to parenting, the court ordered that the Mother have sole parental responsibility for the long-term care, development, and welfare of the children, with the children to live with her. A detailed schedule was established for the children's time with the Father, including provisions for changeovers, telephone communication, school holidays, and special days. The court also made orders regarding medical and schooling information sharing, the holding of passports, and communication between the parents, including injunctions restraining certain behaviours and discussions. Regarding the binding child support agreement, the court declared that the Father owed $14,515.56 in arrears and ordered payment within 14 days, with provisions for interest and enforcement mechanisms, including the potential seizure and sale of the Father's property if payment was not made. The Father was also ordered to pay the Mother's costs of the proceedings.
Orders
Orders of the court
THE COURT ORDERS ON A FINAL BASIS:
Parenting
1.
That all previous Orders are discharged that are inconsistent with these Orders.
Parental Responsibility
2.
That the Mother is to have sole parental responsibility for the long term care, development and welfare of the children, namely X born … 2006 and Y born … 2007 (‘the children’), including any and all issues pertaining to:
(a)Schooling & extra-curricular activities;
(b) Medical and mental health treatment,; and
(c) International travel & passport issue/renewal.
3.
That notwithstanding Order 2, the Mother shall keep the Father informed as to any decisions she has made for the children in relation major long-term issues as defined in s4, Family Law Act 1975.
Living Arrangements
4.
That the children shall live with the Mother.
5.
That the children shall spend time with the Father at all times as may be agreed in writing, and in the absence of agreement:
(a) Each alternate week from after school Friday until the commencement of school Monday, with such time to commence on the Friday which aligns with the arrangement presently in place.
6.
That if the children's school is closed on any day on which changeover is to occur, the children shall remain in the care of the parent they are living with on that day until 3:00 pm.
7.
That each parent will give the other party the first opportunity to care for the children if they are unable to care for the children for a period greater than 8 hours unless that care is to be provided by an immediate family member.
8.
That pursuant to order 7, each party shall provide a minimum of two weeks’ notice in writing to the other parent if they are unable to care for the children, unless in an emergency.
9.
That the Father shall be solely responsible for the daily care, welfare and development of the children when they are in the care of or spending time with him.
10.
That the Mother shall be solely responsible for the daily care, welfare and development of the children when they are in the care of or spending time with her.
Changeovers
11.
That subject to Order 6 and unless otherwise agreed, the children shall be collected and delivered for the purposes of parenting arrangements as follows :
(a) The Father is to collect the children from the children's school at the commencement of any period when the children are to live with or spend time with him; and
(b) The Father is to deliver the children to the children's school at the conclusion of any period where the children are to live with or spend time with him.
12.
That during times that the children are not attending school, or changeovers are not on a school day, changeovers are to occur at the service station located at A Street, Suburb L or another neutral location that may be agreed in advance and in writing by both parties.
Telephone Communication
13.
That the mother and father be at liberty to communicate with the children at all reasonable times.
14.
That the children are at liberty to communicate with the parent they are not living with or spending time with at all times as they request.
End of Terms 1, 2 & 3 School Holidays
15.
That unless otherwise agreed in writing the children are to live with their parents for the school holiday periods which fall at the end of terms 1, 2 & 3 each year as follows:
(a) Being the first half of the Autumn, Winter and Spring school holidays in even numbered years with the Mother and in odd numbered years with the Father; and
(b) The second half of the autumn, winter and spring school holidays in odd numbered years with the Mother and in even numbered years with the Father.
End of Term 4 School Holidays
16.
That unless otherwise agreed in writing the Summer school holidays are to be shared equally between the parents as follows:
(a) The children are to spend time with the Father from the first Saturday of that holiday period to the fourth Saturday of that holiday period subject to Orders below which deal with Christmas day; and
(b) In the event that the Father fails to facilitate the children spending time with him in accordance with the preceding Order then that block of time shall be forfeited, and the next period of time the children spend with the Father be as per the schedule prepared by the Mother pursuant to these Orders.
Practical Implementation of School Holiday Time
17.
That for the purpose of calculating the time that the children spend with the parties during school holidays time shall commence:
(a) When a parent's time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5:00pm on the day calculated to be half of the holidays; and
(b) When a parent's time falls in the second half of the holidays from 5:00pm on the day calculated to represent half of the holidays and time shall end at 9:00am on the day the school term recommences.
18.
That for the purposes of these Orders:
(a) School holidays are deemed to commence at close of school on the last day of the school term for the last child to finish the term;
(b) School holidays are deemed to conclude at 9:00am on the first day that the first child to start the school term returns to school;
(c) The number of nights in each school holiday period is to be used to calculate one half of the school holiday period; and
(d) If there is an uneven number of nights the Mother shall retain the additional night.
19.
That for the purpose of practical implementation of the time that the children spend with the parties pursuant to these Orders during school holiday periods:
(a) A schedule of the shared holiday time (according to these orders) will be prepared by the mother;
(b) That schedule is to be provided to the father at least ten (10) weeks in advance of the commencement of each holiday period; and
(c) The father and mother will strictly adhere to that schedule.
20.
That notwithstanding any other Order herein, the children are to be returned to the Mother's care for at least 2 nights prior to the first day of school each year.
Special Time
21.
That notwithstanding any other order and unless otherwise agreed in writing the children shall spend time with each parent during special times as follows:
Christmas
(a) From 9:00 am Christmas Eve until 9:00 am Christmas Day with the Mother and from 9.00 am Christmas Day until 5:00 pm Boxing Day with the Father;
Mother's Day
(b) The children shall spend time with the Mother on Mother's Day from 9.00 am until 5:00 pm;
Father's Day
(c) The children shall spend time with the Father on Father's Day from 9.00 am until 5:00 pm;
Child's Birthdays
(d) That unless otherwise agreed between the parties, the children shall spend time on their birthday with the parent they are not living with from 3:00 pm to 7:00 pm; and
Parent's Birthdays
(e) That the children shall spend time with each parent on that parent's birthday as agreed, in writing, between the parties.
Parental Communication
22.
That communication between the mother and father be facilitated by the use of the Divitto application, save for the Mother complying with the terms of the Binding Child Support Agreement and Order 25 herein in which case the Mother shall send the relevant information to the Father via email and that all communication between the parties be restricted to issues directly regarding the children and will be polite and respectful.
23.
That the parties are to authorise the children's school to contact both parents by telephone in the event of an emergency (medical or otherwise) during school hours, noting that this Order does not purport to bind the school to act in any particular way.
24.
That notwithstanding the preceding Order, in the event that one parent is notified by the school of an emergency involving either child, that parent is to notify the other parent forthwith.
25.
That in the event the emergency occurs outside of school hours, the parties can contact each other directly via telephone or the children's maternal grandmother on her mobile phone.
Medical
26.
That within seven (7) days of a request by the mother the father shall provide to the mother a duplicate card for the children's private health insurance to be provided to the mother (noting that the mother presently has a card).
27.
That the Mother authorise the children's medical and mental health practitioners to discuss with the Father the children's health and medical treatment but that the Father is restrained from giving any direction as to treatment for the children to the medical practitioner.
28.
That the Father and Mother inform the other as soon as it is reasonably practicable of any medical condition, significant health issue and/or illness suffered by the children and authorise any treating medical practitioner to give the other parent such information that he or she may reasonably request pertaining to such situation.
29.
That each party keep the other party informed of the names and addresses of any and all medical practitioners who are involved in treating or caring for the children and the Father shall be at liberty to attend any medical, dental, mental health or optical appointments only with the express written consent of the Mother, save for in the case of an emergency.
Schooling
30.
That the Father and Mother are to each respectively authorise the children's school:
(a) To provide the other parent copies of all school reports and any other reports on the children's progress and behaviour issues and all notices received from the school including newsletters, parent letters and general notices;
(b) To inform the other parent of all extracurricular activities that occur at the children's school including parent/teacher meetings, sporting events, special events and any other activities to which the parents are invited; and
(c) To contact the other parent in respect to school photographs and that provision of such photographs must be arranged by the Father and Mother with the school directly.
31.
That noting that nothing in the preceding Order purports to bind the children's school to act in any particular way, nothing in the preceding Order is intended to relieve either parent of their obligation to communicate with the other in relation to matters relevant to the parenting of the children.
32.
That the Mother and Father shall use their best endeavors to ensure that the children complete their homework and other school tasks while in the care of each of them, and sign off the children's homework books as required.
Passports
33.
That the children's passports be held by Mother, and the costs of obtaining and/or renewing the children's passports be met by the Mother.
Specific Issues
34.
That each party shall keep the other party informed of changes to the respective party's email address and mobile telephone number within 48 hours of such change.
35.
That neither party shall discuss with the children or permit discussion with the children or any of them any aspect of these proceedings or any difference between the parties relating to the financial circumstances or other aspects of the other's lifestyle.
36.
That neither party shall denigrate or cause or permit the denigration of the other to the children or in the presence or hearing of the children.
37.
That neither party shall discuss adult issues in the presence or hearing of the children.
38.
That each party is restrained and an injunction be granted restraining the Mother and Father from arranging, or discussing with the children, commitments for the children during the time they would otherwise be in the care of the other parent without that parent's agreement in writing.
39.
That the Father be restrained and an injunction be granted restraining Father from expressing his opinion as to the mother's mental health with the children, or from enquiring as to any mental health treatment the children may, from time to time, receive.
40.
That in the event that the Mother and/or Father elect to attend/continue with any counselling an exemption of s121 of the Family Law Act 1975 be granted so that the either parent may be permitted to provide a copy of:
a. each of family reports of Mr D prepared in these proceedings,
b. the report prepared by Dr E in these proceedings
to their treating mental health practitioner/s, but only those practitioner/s.
Costs
41.
That the Father pay the Mother's costs of and incidental to these proceedings.
42.
That all outstanding applications be dismissed.
Property
Binding Child Support Agreement Arrears
1.
That pursuant to Rule 25B.13(a) of the Federal Circuit Court Rules 2001 the Court declare that the amount of $14,515.56 is owed by the Father to the Mother.
2.
That within 14 days the Father shall:
(a) pay to the Mother $14,515.56 being the outstanding amount owing pursuant to the Binding Child Support agreement dated 13 February 2013 together with interest thereon at a rate prescribed under the Family Law Act 1975 adjusted monthly from the date of this Order; or
(b) provide confirmation that the requisite documentation has been submitted in the event that the Father is seeking to have those funds released from his superannuation.
3.
That until such time that the Father pays the Mother the amount required by Order 2 herein, the Father is restrained by injunction from further encumbering the Property.
4.
That should the Father fail to pay to the Mother the amount required by Order 2 above, pursuant to Rule 25B.11 of the Federal Circuit Court Rules 2001 an enforcement warrant be issued, but remain in the Registry subject to Order 5 herein.
5.
That the filing of an affidavit of the representatives of the Mother advising that the sum referred to at Order 2 remains unpaid, and the filing of an affidavit by an appropriate enforcement officer, shall be sufficient evidence to cause the enforcement warrant to issue permitting the seizure and the sale of the Father’s real property situated at B Street, Suburb C, Queensland, otherwise known as Lot … on RP … in the Parish of … (‘The Property’).
6.
That upon completion of the sale of the Property, the proceeds of sale be applied as follows:
(a) Firstly to pay all costs, commissions and expenses of the sale;
(b) Secondly to discharge any mortgage and any other encumbrance affecting the real property;
(c) Thirdly, to the Mother, such amount referred to at Order 45 as in then outstanding, together with interest thereon at a rate prescribed under the Family Law Act 1975 adjusted monthly from the date of this Order; and
(d) Fourthly, the balance to the Father.
7.
That the Father pay the Mother’s costs of and incidental to the Application in a Case filed by the Mother on 17 April 2019.
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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