FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINCHIN & MCDONALD | [2011] FMCAfam 681 |
| FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – parental alienation – separation of siblings. FAMILY LAW – Property – application for property settlement. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 75, 79 |
| Pierce & Pierce [2010] FMCAfam 1137 Calvert & Calvert [2008] FMCAfam 101 In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355 |
| Applicant: | MS MINCHIN |
| Respondent: | MR MCDONALD |
| File Number: | WOC 675 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 17, 18 June, 19-22 October, 3 November, 14, 16 December 2010, 17 February 2011 |
| Date of Last Submission: | 17 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hausman |
| Solicitors for the Applicant: | Maguire & McInerney |
| Counsel for the Respondent: | Mr Alexander |
| Solicitors for the Respondent: | Verekers Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Maurice |
| Solicitors for the Independent Children’s Lawyer | Williamson Isabella |
ORDERS
All earlier parenting Orders are discharged.
The child of the marriage [X] born [in] 1998 is to live with the Respondent Husband.
The children of the marriage [Y] born [in] 2000 and [Z] born [in] 2003 are to live with the Applicant Wife.
The Respondent is to have sole parental responsibility for the child [X].
The Applicant is to have sole parental responsibility for the children [Y] and [Z].
The Applicant is to have parental responsibility for all day to day issues relating to [X] whenever [X] is spending time with the Applicant as provided by these orders including making arrangements for any necessary medical treatment.
The Respondent is to have parental responsibility for all day to day issues relating to [Y] and [Z] whenever [Y] and [Z] or either of them is spending time with the Respondent as provided by these orders including making arrangements for any necessary medical treatment.
The Applicant is to authorise any school attended by the children [Y] and [Z] to provide to the Respondent at his expense copies of all school reports, newsletters, advice of school photographs and other documents normally provided to parents of children attending that school.
The Respondent is to authorise any school attended by the child [X] to provide to the Applicant at her expense copies of all school reports, newsletters, advice of school photographs and other documents normally provided to parents of children attending that school.
The Applicant is at liberty to make any necessary arrangements with the school attended by [X] in order that she may attend a parent-teacher interview about the child’s progress at school PROVIDED THAT such interview is held separately from any such interview attended by the Respondent.
The Respondent is at liberty to make any necessary arrangements with the schools attended by [Y] and [Z] in order that he may attend parent-teacher interviews about the children’s progress at school PROVIDED THAT such interviews are held separately from any such interviews attended by the Applicant.
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- AGLC
- MINCHIN & MCDONALD [2011] FMCAfam 681
- Case
- [2011] FMCAfam 681
- Decision Date
CaseChat Overview and Summary
The primary issues were the allocation of parental responsibility and living arrangements for the children, given the allegations of parental alienation and the need to protect the children's best interests. The court also needed to decide on the division of property between the parties, considering their respective financial situations and contributions.
The court discharged all previous parenting orders and allocated the children to live with their respective parents, assigning sole parental responsibility to each parent for their respective children. The court also established detailed arrangements for the children to spend time with the non-resident parent, including specific visitation schedules and conditions to ensure the children's well-being and to prevent parental alienation. Furthermore, the court mandated therapeutic counselling for the children to assist with the transition and to address any issues arising from the separation. The court further outlined the process for selling the matrimonial home and the division of its proceeds, ensuring that any debts and costs were settled before distribution to the parties.
The court's final orders specified the living arrangements for the children, allocated parental responsibility, mandated therapeutic counselling, and detailed the process for selling the matrimonial home, ensuring the children's best interests and financial fairness between the parties.
Orders
Orders of the court
1.
All earlier parenting Orders are discharged.
2.
The child of the marriage [X] born [in] 1998 is to live with the Respondent Husband.
3.
The children of the marriage [Y] born [in] 2000 and [Z] born [in] 2003 are to live with the Applicant Wife.
4.
The Respondent is to have sole parental responsibility for the child [X].
5.
The Applicant is to have sole parental responsibility for the children [Y] and [Z].
6.
The Applicant is to have parental responsibility for all day to day issues relating to [X] whenever [X] is spending time with the Applicant as provided by these orders including making arrangements for any necessary medical treatment.
7.
The Respondent is to have parental responsibility for all day to day issues relating to [Y] and [Z] whenever [Y] and [Z] or either of them is spending time with the Respondent as provided by these orders including making arrangements for any necessary medical treatment.
8.
The Applicant is to authorise any school attended by the children [Y] and [Z] to provide to the Respondent at his expense copies of all school reports, newsletters, advice of school photographs and other documents normally provided to parents of children attending that school.
9.
The Respondent is to authorise any school attended by the child [X] to provide to the Applicant at her expense copies of all school reports, newsletters, advice of school photographs and other documents normally provided to parents of children attending that school.
10.
The Applicant is at liberty to make any necessary arrangements with the school attended by [X] in order that she may attend a parent-teacher interview about the child’s progress at school PROVIDED THAT such interview is held separately from any such interview attended by the Respondent.
11.
The Respondent is at liberty to make any necessary arrangements with the schools attended by [Y] and [Z] in order that he may attend parent-teacher interviews about the children’s progress at school PROVIDED THAT such interviews are held separately from any such interviews attended by the Applicant.
12.
The Applicant must inform the Respondent of any changes to the school or schools attended by [Y] and [Z].
13.
The Respondent must inform the Applicant of any change to the school attended by [X].
14.
The Applicant must inform the Respondent of any illness or injury sustained by [Y] or [Z] requiring hospitalisation or treatment by a medical specialist as soon as is reasonably practicable and in any event within four (4) hours.
15.
The Respondent must inform the Applicant of any illness or injury sustained by [X] requiring hospitalisation or treatment by a medical specialist as soon as is reasonably practicable and in any event within four (4) hours.
16.
The Applicant must inform the Respondent as soon as is reasonably practicable and in any event within four (4) hours of any illness or injury sustained by [X] at any time when she is spending time with the Applicant as provided by these Orders and any medication or treatment prescribed for her.
17.
The Respondent must inform the Applicant as soon as is reasonably practicable and in any event within four (4) hours of any illness or injury sustained by either [Y] or [Z] at any time when they are spending time with him as provided by these Orders and any medication or treatment prescribed for them or either of them.
18.
For a period of six (6) weeks from the date of these Orders the Applicant is restrained by injunction from permitting the children [Y] and [Z] or either of them to spend time with or communicate with any of the following:
(a) the Respondent;
(b) the children’s sister [X]; or
(c) Ms L.
19.
For a period of six (6) weeks from the date of these Orders the Respondent is restrained by injunction from spending time or communicating with either of the children [Y] and [Z] or from attempting to communicate or spend time with the children or either of them.
20.
For a period of six (6) weeks from the date of these Orders the Respondent is restrained by injunction from permitting the child [X] or Ms L from spending time or communicating with either of the children [Y] and [Z] or attempting to communicate or spend time with either of them.
21.
Immediately after the expiry of the period of six (6) weeks from the date of these orders referred to above the Applicant and the Respondent are to make arrangements for the children [Y] and [Z] to attend therapeutic counselling sessions with MS M, psychologist in company with the Respondent and the child [X] or either of them for six (6) weekly sessions with the aim of reintroducing the Respondent and [X] to [Y] and [Z] in such a way as not to undermine the relationship between the Applicant and [Y] and [Z] and the Independent Children’s Lawyer is granted leave to provide a copy of the Single Expert Report prepared by Associate Professor Q to Ms M.
22.
After the completion of the six weekly sessions with Ms M prescribed in Order (21) above the children [Y] and [Z] are to spend time with the Respondent as follows:
(a) For one (1) afternoon each week, to continue for four (4) weeks, from after school until 7:00pm on an afternoon to be agreed between the parties and, in lieu of agreement, each Wednesday afternoon, with the Respondent to collect the children from their school or schools at the commencement of the time and to return the children to the home of the Applicant at the conclusion of that time;
(b) Thereafter, from 9:00am until 5:00pm each Saturday for a period of four (4) weeks;
(c) Thereafter, each alternate weekend from 9:00am on Saturday until 5:00pm on Sunday for six (6) occasions;
(d) Thereafter:
(i) each alternate weekend during the school term from immediately after school on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday immediately following the weekend is a public holiday then until the commencement of school on the Tuesday morning;
(ii) during the week immediately after the weekend during the school term when the children [Y] and [Z] spend time with the Respondent as provided by (i) above from immediately after school on the Wednesday of that week until the commencement of school the following morning;
(iii) from 10:00am on Christmas Eve until 10:00am on Christmas Day in 2011 and each odd numbered year thereafter;
(iv) from 10:00am on Christmas Day until 10:00am on Boxing Day in 2012 and each even numbered year thereafter;
(v) from 9:00am on 5 January until 5:00pm on Australia Day in each year; and
(vi) for the second half of each of the school holidays during the year in 2012 and each even numbered year thereafter commencing at 9:00am on the middle Saturday and concluding at 5:00pm on the final Friday of each school holiday period;
(vii) for the first half of each of the school holidays during the year in 2013 and each odd numbered year thereafter commencing immediately after school on the last day of the school term and concluding at 5:00pm of the middle Saturday of each school holiday period.
23.
In addition to the times prescribed by Order (22) above the children [Y] and [Z] are to spend time with the Respondent:
(a) from 9:00am to 5:00pm on Father’s Day in each year if that day should fall on a day when the children would not otherwise be spending time with the Respondent as provided by these Orders;
(b) from 9:00am to 5:00pm on the Respondent’s birthday if that day should fall on a weekend and from immediately after school until 7:00pm if that day should fall on a weekday and if that day should fall on a day when the children would not otherwise be spending time with the Respondent as provided by these Orders; and
(c) from 11:00am to 3:00pm on each of the birthdays of the children [X], [Y] and [Z] if those days should fall on a weekend and from immediately after school until 7:00pm if the particular birthday should fall on a weekday and if any of those days should fall on a day when the children would not otherwise be spending time with the Respondent as provided by these Orders.
24.
Notwithstanding the provisions of Order (22) above the Respondent’s time with the children [Y] and [Z] will be suspended:
(a) On the weekend that includes Mother’s Day in each year; and
(b) On the Applicant’s birthday if that day should fall on a day when the Children [Y] and [Z] would otherwise be spending time with the Respondent as provided by these orders.
25.
In the event that the Respondent’s time with the children [Y] and [Z] is suspended because it would fall on the weekend that includes Mother’s Day in a particular year then the children will spend time with the Respondent on the weekend immediately following.
26.
The child [X] is to spend time with the Applicant on such days and at such times as the child expressly wishes and in this regard the Respondent is restrained from discouraging the child from spending time with the Applicant.
27.
The Applicant must do all things necessary to engage [Y] and [Z] in therapeutic counselling to assist them to:
(a) re-engage with the Applicant;
(b) adjust to the changes in their living arrangements; and
(c) deal with other issues that may arise in the children’s lives.
28.
The Respondent is to do all things necessary to facilitate the child [X] attending upon Ms M to assist her to:
(a) understand the benefit of having a positive relationship with her mother;
(b) understand the right of [Y] and [Z] to have a positive relationship with their mother;
(c) refrain from undermining the relationship [Y] and [Z] have with their mother; and
(d) adjust to the changes in her living arrangements.
29.
The Applicant and the Respondent are to make all necessary arrangements for the children to attend therapeutic counselling sessions with Ms M as provided by Order (21) above.
30.
The Applicant and the Respondent are to contribute equally to the cost of the children’s attendance on Ms M for the purposes of Order (21).
31.
The Applicant is restrained by injunction from bringing the children [X], [Y] and [Z] or any of them into contact with Mr H.
32.
The Applicant is restrained by injunction from leaving the children or any of them in the care of her brother Mr N.
33.
The Applicant is restrained by injunction from leaving any of the children unsupervised by a responsible adult is known to them.
34.
Neither party is to use any physical discipline on any of the children.
35.
Neither party is to discuss these proceedings with any of the children.
36.
The parties must inform each other of any change to their residential address, mobile telephone number or landline number within forty-eight (48) hours of such change occurring.
37.
Within seven (7) days of these Orders:
(a) the Respondent is to make a joint appointment with the Independent Children’s Lawyer and Ms M for the purpose of explaining these Orders to [X]; and
(b) the Applicant is to make a joint appointment with the Independent Children’s Lawyer and Ms M for the purpose of explaining these Orders to [Y] and [Z].
38.
The appointment of the Independent Children’s Lawyer is extended until 31 December 2011.
39.
The Independent Children’s Lawyer is granted liberty apply on seven (7) days notice in the event of any failure of either party to comply with any of these parenting Orders.
40.
Each party is to pay to the Independent Children’s Lawyer the sum of $1,738.00 being one half of the outstanding fees owing to Associate Professor Q the Single Expert or such part thereof as remains unpaid within seven (7) days.
41.
The Applicant and the Respondent are each to pay one half of the costs of the Independent Children’s Lawyer in these proceedings as assessed or agreed.
Property Orders
42.
The Applicant and the Respondent must do all such things and execute all deeds, documents and instruments necessary to sell the whole of the parties’ right, title and interest in the real estate situate at and known as Property K in the State of New South Wales by private treaty at a price agreed between the parties or failing such agreement at a price equivalent to the mean of two valuations by registered valuers being members of the Australian Institute of Valuers one obtained by and at the expense of the Applicant and one obtained by and at the expense of the Respondent, such valuations to be made not more than two (2) weeks apart from each other and give such instructions to a solicitor for the preparation of an appropriate contract for sale and such other documents as are necessary for the sale of the said real property at Property K by private treaty.
43.
In the event that the said real property at Property K is not sold by private treaty within three (3) months from the date of these Orders then the parties must within a further period of one (1) month do all acts and things and execute all deeds, documents and instruments necessary to procure the sale of the said real property by public auction at a reserve price recommended by the auctioneers.
44.
For the purposes of Orders (42) and (43) above the parties are to agree upon a solicitor to act on the sale of the said real property within fourteen (14) days and in default of agreement the President of the Law Society of New South Wales is to nominate a solicitor to act upon the sale.
45.
For the purposes of Order (42) the parties are to agree upon a real estate agent within fourteen (14) days and in default of agreement the President of the Real Estate Institute is to nominate a real estate agent to act upon the sale.
46.
Upon the sale of the real property at Property K the proceeds of sale are to be paid in the following manner and priority:
(a) in payment of the amount secured by any mortgage encumbering the said real property;
(b) in payment of any local government rates, water rates and other outgoings on the said real property;
(c) in payment of all real estate agents’ or auctioneers’ commission and auction and advertising expenses in connection with the sale of the said real property;
(d) in payment of all solicitors’ costs of acting on the sale;
(e) as to one half of the balance to the Applicant after deduction of the following:
(i) the amount of $1,738.00 to the Independent Children’s Lawyer for payment out to Associate Professor Q being one half of the fees owing to Associate Professor Q by the Applicant as provided by Order (40) above or such part that remains outstanding at the date of settlement; and
(ii) a sum equivalent to one half of the costs of the Independent Children’s Lawyer as assessed or agreed pursuant to Order (41) or such part as remains outstanding at the date of settlement;
(f) as to the other half of the balance to the Respondent after deduction of the following:
(i) the amount of $1,738.00 to the Independent Children’s Lawyer for payment out to Associate Professor Q being one half of the fees owing to Associate Professor Q by the Respondent as provided by Order (40) above or such part that remains outstanding at the date of settlement; and
(ii) a sum equivalent to one half of the costs of the Independent Children’s Lawyer as assessed or agreed pursuant to Order (41) or such part as remains outstanding at the date of settlement.
47.
The parties are otherwise solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of each party as at the date of these Orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
48.
In the event that either party refuses or neglects to execute any necessary document or instrument to give effect to any of these Orders within seven (7) days of being called upon to do so then a Registrar of the Court is appointed under the provisions of section 106A of the Family Law Act 1975 to execute all such necessary documents or instruments in the name of the party who refuses or neglects to do so.
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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