Masters & Newton - [2022] FedCFamC2F 509

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Masters & Newton [2022] FedCFamC2F 509

File number(s): SYC 4764 of 2009

Judgment of: JUDGE W J NEVILLE

Date of judgment: 22 April 2022

Catchwords: FAMILY LAW – PARENTING – long history of conflicted parenting and protracted litigation since 2009 between the parties – matter largely settled by consent at final hearing – discrete issues remaining relate to a restriction on the Father’s living location, overseas travel, various financial orders and child support – where the Mother was primary caregiver of both children until recently – where the siblings are separated and each of them now reside primarily with one parent – where the Mother found to have borne most of the financial costs relating to the children – the Father ordered to repay half of major costs relating to the children for the second half of 2021 – any future costs to be borne equally between the parties – sole parental responsibility ordered for each parent in respect to the child that now primarily resides with them – any relocation by the Father is to be advised to the mother with no less than 30 days’ notice – parties to retain legal advisers to prepare a binding child support agreement.

Legislation:
Child Support Assessment Act 1989 (Cth) s 116(1) & (2), 117

Family Law Act 1975 (Cth) s.60CC(3)(c), (d)

Cases cited:
Mulvany v Lane (2009) 41 Fam LR 418

Slater v Light (2011) 45 Fam LR 41 t

Division: Division 2 Family Law

Number of paragraphs: 53

Date of last submission/s: 9 March 2022

Date of hearing: 18 and 19 October 2021

Place: Canberra

Solicitor for the Applicant: Self-Represented

Counsel for Respondent: Mr O’Reilly

Solicitor for Respondent: Newnhams Solicitors

Counsel for the Independent Children’s Lawyer: Mr Stagg

Solicitor for the Independent Children’s Lawyer: Legal Aid ACT

ORDERS

SYC4764/2009

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MASTERS
Applicant

AND:
MR NEWTON
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

22 APRIL 2022

ON A FINAL BASIS, THE COURT ORDERS THAT:

Parenting
1.Any medical or dental costs incurred in relation to X while he is in the care of the Mother are to be borne equally by both parents.
2.If the Father plans to move his (and X’s) residence from the region of Town B in New South Wales, the Father must provide the Mother with no less than 30 days’ notice of such intention.
3.If the Father’s proposed relocation is objected to by the Mother, the Mother has leave to file an urgent Application in a Proceeding.
4.In any circumstance where it is proposed, by either parent, that one or either (or both) children travel overseas, no less than 30 days prior to the intended date of travel, the “travelling parent” shall provide to the “non-travelling parent” an itinerary for the proposed trip, together with a copy of the airline tickets for the children and the travelling parent.
5.Pursuant to s.62B…

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 Masters & Newton

Details

AGLC: Masters & Newton [2022] FedCFamC2F 509
Case: [2022] FedCFamC2F 509
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) was required to determine a number of parenting and financial issues between the parties, MS Masters and MR Newton, who had been embroiled in a long and contentious legal battle since 2009. The remaining issues in dispute were (a) a restriction on the Father’s living location, (b) overseas travel, (c) various financial orders, and (d) the Mother’s Child Support Departure Application. The Court considered the legal principles relevant to the issues, including the overarching imperative of securing the outcome most likely to promote the child’s best interests, and the need for pragmatism and problem-solving in the context of the parents' poor co-parenting relationship. The Court ordered that the Father must provide the Mother with no less than 30 days’ notice if he plans to move his (and X’s) residence from the region of Town B in New South Wales. If the Father’s proposed relocation is objected to by the Mother, she has leave to file an urgent Application in a Proceeding. In any circumstance where it is proposed that one or either (or both) children travel overseas, no less than 30 days prior to the intended date of travel, the “travelling parent” shall provide to the “non-travelling parent” an itinerary for the proposed trip, together with a copy of the airline tickets for the children and the travelling parent. The Court ordered that within 30 days of the date of these Orders, the parties are to retain independent legal advisers with a view to preparing a Binding Child Support Agreement. Within 30 days of the date of these Orders, both parties are to obtain from the Child Support Agency (‘CSA’) a statement of any outstanding arrears of child support. The sum declared by the CSA is to be included in the Binding Child Support Agreement and the date by which it is to be paid. Regarding monthly child support, an assessment needs to be made by the CSA regarding whether there is the need for payment of any future child support. Subject to the CSA’s determination of any future child support, the existing amount of child support payable will be the average of the last three determinations of it by the CSA. This amount of child support will continue to be paid until the CSA’s determination issues. Within 30 days of these Orders, the Father is to pay (or reimburse) the Mother half of X’s school fees for his final term in Canberra in 2021. Within 30 days of these Orders, the Father is to reimburse the Mother one half of the costs paid by the Mother for the children’s orthodontic, dental and other health care costs for the 2021 year up to the date of these Orders. These reimbursements are to be paid within 30 days of the Mother providing receipts to the Father. All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

Orders