FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marcet & Marcet [2024] FedCFamC2F 774
File number(s): PAC 4865 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 18 June 2024 Catchwords: FAMILY LAW – PARENTING – Orders made in best interests of child.
FAMILY LAW – PROPERTY – Just and equitable orders made.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D, 75, 79 Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 137 Date of hearing: 27 – 29 May 2024 Place: Parramatta Counsel for the Applicant: Mr Fantin Solicitor for the Applicant: Pannu Lawyers Counsel for the Respondent: Mr Givney Solicitor for the Respondent: NSW Family Law Specialists ORDERS
PAC 4865 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MARCET
Applicant
AND: MS MARCET
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
18 JUNE 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
Parenting
1.The mother have sole decision making responsibility for the child X born in 2016 (hereinafter “the child”) in respect of medical issues, and otherwise the parties have joint decision making responsibility for the child.
2.The mother shall keep the father informed of all medical appointments with the child’s specialists within a reasonable time prior to the appointment and shall otherwise consult with the father in respect of any significant medical issue relating to the child.
3.The child shall live with the mother.
4.The father shall spend time with the child as follows:
(a)From the date of these orders for a period of four months:
(i)In the first week of a fortnight, from the conclusion of school on Friday or 3.00 pm on a non-school day to before school or 9.00 am on Monday;
(ii)In the second week of a fortnight, from the conclusion of school on Tuesday or 3.00 pm on a non-school day until 7.00 pm;
(b)Thereafter:
(i)During school terms, each alternate weekend from after school or 3.00 pm on Friday to before school or 9.00 am on Tuesday;
(ii)During Autumn, Winter, and Spring school holidays:
A.In even numbered years, from 3.00 pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3.00 pm on the Friday immediately following;
B.In odd numbered years, from 3.00 pm on the middle Friday of the holiday period to the commencement of school;
(iii)During Summer school holidays:
A.In even numbered years, from the conclusion of the last day of the school term until 3.00 pm on the Friday falling within the middle period of the school holiday block.
B.In odd numbered years, from 3.00 pm on the Friday falling within the middle period of the school holiday block until the commencement of the first day of the school term.
5.The child shall spend special occasion time with each parent as agreed between the parties in writing and failing agreement as follows:
(a)In the event the child is…
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CaseChat Overview and Summary
The court had to decide on the allocation of parental responsibilities, particularly regarding decision-making and time-sharing arrangements, as well as the distribution of property acquired during the marriage. The court considered various factors, including the child’s need for stability, the parents' ability to provide for the child’s physical and emotional needs, and the child's relationship with each parent.
The court ruled that the mother should have sole decision-making responsibility for medical issues concerning the child, while joint decision-making responsibility would apply to all other matters. The child would reside with the mother, with the father having specified visitation times. Special occasions, such as birthdays and religious holidays, were also outlined in the orders. Communication between the child and the non-residential parent was mandated through regular video calls. The court also addressed property distribution, requiring the wife to pay a lump sum and transfer certain properties to the husband, with reciprocal transfers to be made by the husband upon compliance. In the event of non-compliance, the sale of a specific property was ordered to settle the outstanding amount.
The court's reasoning focused on ensuring that the child's welfare and best interests were paramount in both the parenting and property orders. The detailed arrangements for time-sharing and communication aimed to maintain a strong relationship between the child and both parents while ensuring stability and continuity in the child's life. The property distribution was designed to achieve a just and equitable outcome for both parties, considering their respective contributions and needs.
Orders
Orders of the court
PAC 4865 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MARCET
Applicant
AND:
MS MARCET
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
18 JUNE 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
Parenting
1. The mother have sole decision making responsibility for the child X born in 2016 (hereinafter “the child”) in respect of medical issues, and otherwise the parties have joint decision making responsibility for the child.
2. The mother shall keep the father informed of all medical appointments with the child’s specialists within a reasonable time prior to the appointment and shall otherwise consult with the father in respect of any significant medical issue relating to the child.
3. The child shall live with the mother.
4. The father shall spend time with the child as follows:
(a) From the date of these orders for a period of four months:
(i) In the first week of a fortnight, from the conclusion of school on Friday or 3.00 pm on a non-school day to before school or 9.00 am on Monday;
(ii) In the second week of a fortnight, from the conclusion of school on Tuesday or 3.00 pm on a non-school day until 7.00 pm;
(b) Thereafter:
(i) During school terms, each alternate weekend from after school or 3.00 pm on Friday to before school or 9.00 am on Tuesday;
(ii) During Autumn, Winter, and Spring school holidays:
A. In even numbered years, from 3.00 pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3.00 pm on the Friday immediately following;
B. In odd numbered years, from 3.00 pm on the middle Friday of the holiday period to the commencement of school;
(iii) During Summer school holidays:
A. In even numbered years, from the conclusion of the last day of the school term until 3.00 pm on the Friday falling within the middle period of the school holiday block.
B. In odd numbered years, from 3.00 pm on the Friday falling within the middle period of the school holiday block until the commencement of the first day of the school term.
5. The child shall spend special occasion time with each parent as agreed between the parties in writing and failing agreement as follows:
(a) In the event the child is not already in the father’s care on Father’s Day, the child shall spend time with the father commencing from the conclusion of school before Father’s Day to the commencement of school on Monday.
(b) In the event the child is not already in the mother’s care on Mother’s Day, the child shall spend time with the mother commencing from the conclusion of school before Mother’s Day to the commencement of school on Monday.
(c) In the event the child is not already in the father’s care on the father’s birthday, the child shall spend time with the father from 10.00 am until 7.00 pm on the father’s birthday and in the event the father’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(d) In the event the child is not already in the mother’s care on the mother’s birthday, the child shall spend time with the mother from 10.00 am until 7.00 pm on the mother’s birthday and in the event the mother’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(e) In the event the child is not already in the father’s care on the child’s birthday, the child shall spend time with the father from 10.00 am until 2.00 pm on the child’s birthday and in the event the child’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(f) In the event the child is not already in the mother’s care on the child’s birthday, the child shall spend time with the mother from 10.00 am until 2.00 pm on the child’s birthday and in the event the child’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(g) In the event the child is not already in the father’s care on Diwali, the child shall spend time with the father on Diwali from the conclusion of school until 7.00 pm and in the event Diwali falls on a non-school day when the child is not already in the father’s care, the child shall spend time with the father from 10.00 am until 7.00 pm.
(h) In the event the child is not already in the mother’s care on Diwali, the child shall spend time with the mother from the conclusion of school until 7.00 pm, and in the event Diwali falls on a non-school day when the child is not already in the mother’s care, the child shall spend time with the mother from 10.00 am until 7.00pm.
(i) In the event the child is not already in the father’s care on a holy day, the Child shall spend time with the father on a holy day from the conclusion of school until 7.00 pm and on a non-school day from 10.00 am until 7.00 pm.
6. Changeovers are to occur as agreed between the parties in writing or failing agreement:
(a) In the event that the party’s time with the child commences or concludes at a time coinciding with the commencement or conclusion of the child’s school day, the changeover shall occur at the child’s school, or;
(b) At all other times, at the carpark of the B Store located at C Street, Suburb D.
7. The child have videocall communication with the parent with whom she is not residing every Thursday between 7.00 pm and 7.30 pm and the parent with whom the child is residing with shall do all things necessary to facilitate videocall communication between the child and the other parent.
8. Each party is to keep the other informed of their residential addresses, current telephone numbers and emails, and advise the other of any changes within seven days of such change.
9. In the event of the child suffering illness or injury requiring attendance at or admission to a hospital or requiring specialist medical treatment while spending time or living with either parent:
(a) The other parent is to be notified as soon as practicable;
(b) The other parent is to be provided with the full details of the practitioner or medical facility upon which the child has attended as soon as practicable;
(c) The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and that information in relation to the child is to be shared with the other parent upon request.
10. In regard to travel the following apply:
(a) Each party shall be permitted to take the child on overseas holidays as agreed between the parties in writing, and in default of agreement, as follows:
(i) The proposed holidays must coincide with the child’s normal school holidays and the child’s holiday time with the relevant parent;
(ii) The travelling parent, no later than thirty days prior to the commencement of any overseas holiday, furnish to the non-travelling parent:
A. Written notice of his or her intention to travel overseas with the child;
B. An accurate itinerary including the country/countries that the travelling parent and the child will be travelling to, and the approximate dates on which the travelling parent and child will arrive and depart in each country/state, and;
C. Contact telephone numbers and addresses at which the travelling parent and the child will be staying during such travel.
(iii) Whilst the child is out of the country, the non-travelling parent shall be at liberty to communicate with the child via any audio-visual communication mediums (including but not limited to telephone, FaceTime, WhatsApp, Skype or email) during such period, and;
(iv) The non-travelling parent will not seek an order for the immediate return of the child in the event that their return to Australia has been held up for a reasonable period by unforeseen circumstances such as airline strikes, delay in flights or adverse weather conditions beyond the travelling parent’s control.
(v) Neither parent shall unreasonably withhold their consent for the child to travel unless the following applies:
A. There has been a Department of Foreign Affairs and Trade travel warning from the Australian Government to that destination of level 3 or above, save as to travel to Country E.
11. The child’s Australian passport be held by the Court and only released with signed consent of the parties or order of the Court or when the child attains the age of eighteen years and shall be returned to the Court within fourteen days of returning from any travel with the child.
12. The parties shall ensure that the child holds a valid Australian passport at all times and for that purpose, at least six months prior to the expiration of the child’s passport, the parties shall do all acts ad things and sign all necessary documents to submit a passport renewal application to the Australian Passport Office and shall bear the costs of the renewal equally.
13. If either party refuses to sign the necessary documents to renew the child’s passport in accordance with the above Order, then the other party may apply for the renewal of the passport without that party’s consent.
14. The party with whom the child is living or spending time is to be responsible for day-to-day decisions concerning the care, welfare, and development of the child.
15. The mother and father are entitled to communicate with the child’s school including being listed as emergency contacts at the child’s school.
16. Each party is hereby authorised to:
(a) Obtain from the child’s school all notices, letters, newsletters, school reports, invitations, bulletins, photographs, orders, forms, or otherwise any other document pertaining to the child’s school and education;
(b) Liaise directly with the child’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about the child’s progress and attendance;
(c) Attend all of the child’s medical appointments, school functions and events that allow for parental attendance including but not limited to parent/teacher interviews, concerts, school assemblies, sports days, canteen duties and social functions;
(d) Obtain copies of any medical documents including but not limited to reports, letters, tests, scans etc. from any and all health care professionals or service;
(e) These orders are authority for the child’s school, extracurricular organisations, sporting bodies and/or other organisations to release such information and/or documents as requested by the other party to the extent permitted by law;
(f) The parties be at liberty to attend any extra-curricular activities or sporting activities which the child is enrolled in, and;
(g) The parties are permitted to provide a copy of these orders to the child’s school, out of school care facilities, extracurricular organisations, sporting bodies, medical and healthcare practitioners and any other government authority or organisation as may be necessary.
Property
17. The wife shall within 60 days of the date of these Orders:
(a) Pay to the husband the sum of $116,539;
(b) Transfer to the husband her right title and interest in the property situate at and known as F Street, Suburb G (“the Suburb G property”);
(c) Cause the discharge of the mortgage secured upon the property situate at and known as H Street, Suburb J (“the Suburb J property”).
18. The husband shall forthwith upon the wife’s compliance with the above order:
(a) Cause the discharge of the mortgage secured upon the Suburb G property;
(b) Transfer to the wife his right title and interest in the Suburb J property;
(c) Transfer to the wife his right title and interest in Motor Vehicle 1.
19. In the event the wife fails or neglects to pay to the husband the sum of $116,539 in accordance with Order 14 herein, the parties shall do all acts and things necessary to sell the property situate at and known as H Street, Suburb J and in respect of such sale the following shall apply:
(a) The parties shall place the property in the hands of a licenced auctioneer to sell the property by public auction within 60 days at a reserve price agreed to by the parties;
(b) In the event that the parties cannot agree as to a reserve price at auction, then the parties or either of them shall appoint the President for the time being of the Real Estate Institute (NSW Division) and his or her nominee to assess the reserve price at auction and each party shall be bound by such assessment and equally bear the costs;
(c) The parties shall sell the property by public auction at or above the reserve price and sell the property subsequently to the auction at any offer made at or above the reserve price as agreed or assessed pursuant to these Orders;
(d) Upon sale the proceeds of sale shall be paid as follows:
(i) In payment of agent’s commission and legal fees occasioned by the sale;
(ii) In discharge of the mortgage secured on the property;
(iii) In payment to the husband of $116,539;
(iv) In payment of the balance to the wife.
20. Except as otherwise provided in these Orders, the parties are each declared the sole owners in equity and at law, to the exclusion of each other, to all items of property and financial resources, including furniture, jewellery, household items, choses-in-action, motor vehicles, money in bank accounts and superannuation entitlements held in their respective names as at the date of these Orders.
21. Except as otherwise provided in these Orders, the parties are each to remain solely liable to the exclusion of each other to any debt or liability held in their respective names as at the date of these Orders.
22. Subject to these orders, and except to the extent required to enforce these Orders, the husband hereby releases the wife to the fullest extent permitted by law from any debts, liabilities, demands, or claims whatsoever which the husband has or would have had against the wife but for these Orders and this release.
23. Subject to these orders, and except to the extent required to enforce these Orders, the wife hereby releases the husband to the fullest extent permitted by law from any debts, liabilities, demands, or claims whatsoever which the wife has or would have had against the husband but for these Orders and this release.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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