FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mendes & Oliveira [2024] FedCFamC2F 1151
File number(s): PAC 5388 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 27 August 2024 Catchwords: FAMILY LAW – PARENTING – Benefit of meaningful relationship to the child – Need for self-awareness and impact of behaviours – Risks capable of being minimised – time to incrementally increasing
FAMLY LAW – PROPERTY – Small property pool – Greater overall financial contributions by one party – Future needs adjustment
Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 61D, 90SM, 90SF
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited: Australian Securities and Investment Commission v Hellicar [2012] HCA 17
Bain v Bain (2017) 319 FLR 119
Beckham & Quarrington (No 3) [2024] FedCFamC2F 74
Bevan & Bevan [2013] FamCAFC 116
Blandford & Esmore [2022] FedCFamC1A 67
Dickons & Dickins [2012] FamCAFC 154
Peters & Walker [2015] FamCA 732
Russell & Russell (1999) FLC 92-877
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Division: Division 2 Family Law Number of paragraphs: 152 Date of hearing: 14-16 August 2024 Place: Parramatta Appearing for the Applicant: In person Solicitor for the Respondent: Ms Escobar of Clayhills Escobar Solicitors Counsel for the Independent Children's Lawyer: Ms Ryan Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
PAC 5388 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MENDES
Applicant
AND: MS OLIVEIRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
27 AUGUST 2024
THE COURT ORDERS:
1.That the respondent shall have sole decision-making responsibility in relation to all major long-term issues for the child X born in 2018 (‘child’).
2.That the child live with the respondent.
3.That the child spend time with the applicant as follows:
(a)Commencing 31 August 2024, and each alternate Saturday thereafter from 12 noon to 2pm;
(b)Commencing 26 October 2024, and each alternate Saturday thereafter from 10am to 2pm;
(c)Commencing 21 December 2024, and each alternate Saturday thereafter from 10am to 4pm;
(d)Commencing 15 February 2025, and each alternate Saturday thereafter from 10am to 6pm; and
(e)At all other times as agreed to by the parties in writing.
4.Changeover shall occur at McDonald’s Suburb B or such other place as nominated by the respondent 3 days prior to the child’s time with the applicant.
5.The applicant is restrained by injunction from using any illicit substance for at least 24 hours prior to the child spending time with him and for the duration of the time the child spends time with him.
6.The parties are each restrained from:
(a)Denigrating the other party within the presence or hearing of the child, or causing or permitting any third party from doing so; and
(b)Discussing with the child, or any other person within the presence or hearing of the child, or causing or permitting any third party from doing so, any details of these proceedings.
7.Each party…
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CaseChat Overview and Summary
The primary legal issues before the court involved assessing the capacity of each parent to provide for the child's needs, particularly in light of Mr Mendes's past behaviours and substance use, and determining an equitable distribution of the couple's financial assets given their differing contributions. The court had to weigh the importance of maintaining a meaningful relationship between the child and both parents against the potential risks posed by Mr Mendes's past actions. Additionally, the court needed to consider the financial contributions made by each party to their joint and individual assets and the respective future needs of both parents.
In its reasoning, the court concluded that Ms Oliveira should have sole responsibility for making major long-term decisions regarding the child, reflecting her greater capacity to provide a stable and supportive environment. The court also decided that the child should primarily reside with Ms Oliveira but would have specified visitation times with Mr Mendes, which were to incrementally increase over time. The court imposed conditions on Mr Mendes to ensure the child's safety, including a prohibition on substance use before and during visitation. The court further directed that neither parent should denigrate the other in the child's presence or discuss the proceedings with the child. In terms of property distribution, the court ordered that the funds in their joint bank account be divided, taking into account the greater financial contributions by Ms Oliveira and the need to provide for her future needs.
The court's final orders included detailed arrangements for the child's living situation and visitation times with the applicant, restrictions on the applicant's substance use, and prohibitions on denigration and discussions about the proceedings in the child's presence. The financial orders directed the distribution of the joint bank account funds, with a larger share awarded to Ms Oliveira, reflecting her greater financial contributions and future needs. The orders also included provisions for communication of contact details and changes in circumstances.
Orders
Orders of the court
PAC 5388 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MENDES
Applicant
AND:
MS OLIVEIRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
27 AUGUST 2024
THE COURT ORDERS:
1. That the respondent shall have sole decision-making responsibility in relation to all major long-term issues for the child X born in 2018 (‘child’).
2. That the child live with the respondent.
3. That the child spend time with the applicant as follows:
(a) Commencing 31 August 2024, and each alternate Saturday thereafter from 12 noon to 2pm;
(b) Commencing 26 October 2024, and each alternate Saturday thereafter from 10am to 2pm;
(c) Commencing 21 December 2024, and each alternate Saturday thereafter from 10am to 4pm;
(d) Commencing 15 February 2025, and each alternate Saturday thereafter from 10am to 6pm; and
(e) At all other times as agreed to by the parties in writing.
4. Changeover shall occur at McDonald’s Suburb B or such other place as nominated by the respondent 3 days prior to the child’s time with the applicant.
5. The applicant is restrained by injunction from using any illicit substance for at least 24 hours prior to the child spending time with him and for the duration of the time the child spends time with him.
6. The parties are each restrained from:
(a) Denigrating the other party within the presence or hearing of the child, or causing or permitting any third party from doing so; and
(b) Discussing with the child, or any other person within the presence or hearing of the child, or causing or permitting any third party from doing so, any details of these proceedings.
7. Each party is to keep the other party advised in writing of any change of address, email, or telephone contact number no later than 7 days after any change including the details of their new residential address, new email, or new telephone number (including by email or text message).
8. The funds in the Westpac Bank Account, with account number …95 in the joint names of Ms Oliveira and Mr Mendes (‘the Westpac Bank Account’), be distributed as follows:
(a) $108,282.62 to the respondent;
(b) A payment of $2,700 to the respondent in accordance with Order 2 of the orders dated 2 November 2023;
(c) A payment of $294.03 to the respondent in accordance with Order 12 of the orders dated 13 March 2024; and
(d) The balance to the applicant.
9. Within 14 days of the date of these orders and in accordance with Order 8, the parties shall do all acts and things to cause the funds in the Westpac Bank Account to be distributed in the following manner:
(a) To the applicant at his discretion the amount of $34,513.25; and
(b) To the respondent at her discretion the amount of $111,276.65.
10. Unless otherwise specified in these orders each party shall be entitled to the exclusion of the other to all other property and financial resources of any nature and kind in the possession of such party as at the date of these orders.
11. Unless otherwise specified in these orders each party shall be solely liable for and indemnify the other against any personal liabilities and any liability encumbering any item of property to which that party is entitled pursuant to these orders.
12. Pursuant to section 106A of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit and Family Court of Australia is authorised to execute any document or do any such thing as is required to give effect to these orders in the event of a default of a party to execute such document or do such things as is necessary under these orders.
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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