FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Muir & Rodelo (No 2) [2023] FedCFamC1F 845
File number: SYC 925 of 2019 Judgment of: HENDERSON J Date of judgment: 6 October 2023 Catchwords: FAMILY LAW – CHILDREN – Where there are three children of the marriage – Parental responsibility – Presumption of equal shared parental responsibility – Where the mother seeks sole parental responsibility – Family violence – Finding the father has perpetrated family violence upon the mother and his current partner – Presumption rebutted – Order made for the mother to have sole parental responsibility – With whom a child lives – Order made for the children to live with the mother who holds sole parental responsibility – With whom a child spends time with – Where the findings of family violence against the father include physical, sexual, verbal abuse, and coercive and controlling conduct – Unacceptable risk – Consideration of risk posed by the father to the children – Where the father acts in a vengeful manner – Amelioration of risk – Orders made for day-time only during the school term, separate days during school holidays and special events.
FAMILY LAW – CHILD SUPPORT – Application for departure – Where the mother sought a departure order for expenses relating to schooling, medical and extra-curricular activities – Where the mother also sought a lump sum payment order for past expenses – Lump sum order refused and is to be considered as a post-separation contribution – Consideration of factors required for a departure order – Finding an order is in the interest of both parties – Finding of special circumstances – Departure order made for the father to pay half of expenses of schooling expenses including school fees – Departure order made for half of medical expenses not covered by Medicare or a private health fund to be paid by father.
FAMILY LAW – COSTS – Child representative – Where the costs sought were for the last six days of hearing – Orders made as sought by the Independent Children’s Lawyer.
FAMILY LAW – INJUNCTIONS – Protection of child – Personal protection – Where the mother and Independent Children’s Lawyer sought various injunctions against the father in relation to her and the children – Where injunctions sought a power of arrest – Where the Court has found the father has engaged in coercive and controlling behaviour – Where the Court has previously been required to issue recovery orders in relation to the children – Orders made as sought by the mother and Independent Children’s Lawyer – Preservation of property – Where the wife sought injunctions relating to a property if she is appointed as trustee for its sale against the husband – Orders made as sought by the wife.
FAMILY LAW – JURISDICTION – Whether the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) has jurisdiction to hear applications under the Child Support (Assessment) Act 1989 (Cth) (“CSAA”) – Consideration of the effect of…
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- Muir & Rodelo (No 2) [2023] FedCFamC1F 845
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- [2023] FedCFamC1F 845
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CaseChat Overview and Summary
The court found that the father had perpetrated family violence against the mother and his current partner, leading to the rebuttal of the presumption of equal shared parental responsibility. Consequently, the court granted the mother sole parental responsibility and ordered that the children live with her. Due to the risk posed by the father to the children, the court mandated that the children’s time with the father be limited to daytime only during the school term, separate days during school holidays, and special events. The court also addressed child support, making a departure order for the father to pay half of the children's schooling and uncovered medical expenses.
In relation to property, the court ordered that the father pay a lump sum to the mother and that a property be sold with the wife appointed as trustee. The court further issued various injunctions to protect the mother and children from the father’s coercive and controlling behaviour. Costs for the Independent Children’s Lawyer were also ordered, and the court noted the husband’s lack of credibility due to his deceptive conduct and omission of critical information. The court concluded with detailed orders concerning communication, possession of children’s passports, and the sale of the property, ensuring a structured and protective environment for the children.
Orders
Orders of the court
SYC 925 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS MUIR
Applicant
AND:
MR RODELO
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
6 OCTOBER 2023
THE COURT ORDERS THAT:
1. In these orders, the following definitions shall apply:
(a) “the mother” and “the wife” mean the Applicant, Ms Muir; and
(b) “the father” and “the husband” mean the Respondent, Mr Rodelo.
Parenting
2. All previous orders in relation to X born 2009, Y born 2011, and Z born 2015 (collectively referred to as “the children”), are discharged.
3. The mother shall have sole parental responsibility for the children.
4. The children shall live with the mother.
5. Commencing the weekend of 21–22 October 2023, and subject to Order 6, the children shall spend time with the father as agreed in writing, and failing agreement, as follows:
(a) One day each alternate weekend from 10.00am until 7.00pm, with the day to be as agreed in writing, and failing agreement, to be a Sunday, and this time continues during school holidays;
(b) Each Wednesday during the school holidays from 8.00am until 7.00pm;
(c) From 9.00am until 2.00pm on the following days:
(i) Christmas Day in odd-numbered years; and
(ii) Boxing Day in even-numbered years.
(d) On the father’s birthday, if the day falls on a school day, from after school until 7.00pm, and if on a non-school day, from 10.00am until 7.00pm;
(e) On the birthday of Ms D, if the day falls on a school day, from after school until 7.00pm, and if on a non-school day, from 10.00am until 7.00pm;
(f) On the birthday of the children’s brother, Mr F, if the day falls on a school day, from after school until 7.00pm, and if on a non-school day, from 10.00am until 7.00pm; and
(g) On Father’s Day, from 10.00am until 7.00pm.
6. In the event the children’s time with the father falls on Mother’s Day, the children shall spend time with the father on the Saturday in lieu of Sunday.
7. In the event the mother elects to take the children on a holiday, whether within or outside the Commonwealth of Australia, the children’s time with the father is suspended on the condition that the mother provides written notice at least 28 days prior to the commencement of the holiday period that she intends to take.
8. In the event the mother elects to take the children on a holiday during the summer school holidays, the children’s time with the father is suspended on such conditions:
(a) The mother provides written notice at least 28 days prior to the commencement of the holiday period she intends to take;
(b) The period of suspension is for no longer than 22 days; and
(c) The period of suspension does not impact the children’s time with the father provided in Order 5(c).
9. Changeover shall occur with the mother, or her agent, to deliver the children to the father’s place of residence when his time is to commence, and the father, or his agent, to deliver the children to the front gate of the mother’s place of residence when his time ceases, and each parent or their agent will remain in their vehicle, and neither parent shall approach the other at any time.
10. Pursuant to section 68B of the Family Law Act 1975 (Cth), the father, Mr Rodelo born 1975, whether himself, his agents or servants, is restrained by injunction from:
(a) Removing, taking possession or attempting to remove or take possession, custody or control of any of the children and/or from causing the children to be removed from their mother’s care;
(b) Attending or coming within 50 metres of the mother’s place of residence or any place she may attend from time to time on any occasion except to effect changeover in accordance with Order 9;
(c) Subject to Order 20, attending or coming within 50 metres of the children’s school(s) whilst they are in attendance at their respective schools, unless by invitation, in writing, from the mother or the school principal; and
(d) Attending or coming within 50 metres of any location where any of the children are participating in a sporting or extra-curricular activity at any time except when the children are in his care pursuant to Order 5 inclusive or by written invitation from the mother.
11. Orders 10(a), 10(b), 10(c), and 10(d), are orders for the personal protection of the mother, Ms Muir born 1988, and the children, pursuant to section 68B of the Family Law Act 1975 (Cth) and bring into action the terms of section 68C of the Family Law Act 1975 (Cth), which authorises a police officer to arrest the father without warrant in the event that the police officer believes on reasonable grounds that the father has breached the injunction by causing, or threatening to cause, bodily harm to the mother and/or any of the children, or harassing, molesting or stalking the mother and/or any of the children.
12. Pursuant to section 68B of the Family Law Act 1975 (Cth), the parties, whether themselves, their agents or their servants, are restrained by injunction from:
(a) Denigrating the other party, or a relative or partner of the other party to, in the presence of, or in the hearing of the children, and each party shall use their best endeavours to ensure that no third party denigrates the other party, or a relative or partner of the other party to, in the presence of, or in the hearing of the children; and
(b) Discussing these proceedings in the presence or hearing of any of the children or showing any of the children any document in relation to these proceedings.
13. Subject to Order 32, for the purposes of these orders, the parties are to only contact each other using the My Family Wizard application, with each party to ensure that:
(a) They pay their share of the subscription to that service; and
(b) Any communication is polite and respectful of the children and of each other.
14. Each party is to notify the other as soon as practicable in the event any of the children suffers from a major illness or long-term injury while in that party’s care.
15. In the event any of the children are hospitalised or are receiving any urgent medical attention, only the mother may attend and remain with the child, and in the event hospitalisation occurs in the father’s time, the father must immediately leave the premises upon the mother’s arrival and is not permitted to stay unless invited, in writing to do so, by the mother.
16. The mother is to inform the father, in writing, of any sporting and/or extra-curricular activities that each child are to attend which fall during their time with the father within 48 hours of being notified of same.
17. The father is to ensure that the children attend their sporting and extra-curricular activities that fall during his time with them.
18. The mother is to do all acts and things necessary to authorise each child’s school to provide directly to the father a copy of the children’s school reports and school photograph forms.
19. The father is permitted to access the school portal at each child’s school from time to time.
20. The father is at liberty to attend each child’s end-of-year school presentation day, on the condition that:
(a) He provides the mother with 7 days’ notice in writing that he intends to attend; and
(b) He does not approach the mother or engage in any intimidating behaviour towards her.
21. The mother shall have possession of and hold the children’s passports.
22. Within 7 days of the date of these orders, the mother is to provide to the father a photocopy of the page of the children’s passports with the passport number and the child’s details.
Property
23. Within 60 days of the date of these orders, the husband is to pay to the wife the sum of $723,176, and thereafter the property situated at G Street, Town C, New South Wales (“the Town C property”) is to be the husband’s property absolutely.
24. In the event the husband fails to comply with Order 23, the Town C property is to be sold, and the wife is appointed as the trustee for the sale of the Town C property and the husband is to sign any document and do any acts necessary to ensure the wife has full power to enable her to carry out her role as trustee for the sale of the Town C property.
25. Pending settlement of the sale of the Town C property, the husband is solely liable and responsible for and shall cause to be paid:
(a) All outgoings on the Town C property, including but not limited to, all mortgage repayments, rates, taxes, and the like, as and when they fall due;
(b) Apply any rental income received from the Town C property to the outgoings on that property, or in compliance with Order 30 herein; and
(c) Account to the wife for the rental income receive between the date of these orders and the date of settlement of the Town C property.
26. Within 72 hours of the wife’s appointment as trustee, the husband is to provide to the wife all keys, alarm codes, passwords, and any other access item required to provide the wife with total and unfettered access to the Town C property, together with an index, in writing, of all keys and access items otherwise held by any tenants, by causing these items to be delivered to the office of the wife’s solicitors.
27. Within 7 days of the wife’s appointment as trustee, the husband is to give any and all notice, including written notice, to any tenant or occupant of the Town C property that the property is to be sold.
28. Within 14 days of the wife obtaining an agent to sell the Town C property, the husband is to transfer the sum of $50,000 to her to pay for any necessary completion of works and/or repairs to the Town C property, including obtaining a Building Information Certificate, with the husband to be re-imbursed as to 50 per of this sum from the proceeds of sale.
29. The wife is to provide a copy of all invoices in relation to the works and/or repairs required to be undertaken pursuant to Order 28 to the husband within 48 hours of receipt of same.
30. In the event further funds are required to complete any works and/or repairs to the Town C property, the wife is to provide the husband with any quote(s) for the additional costs, and the parties are to share those costs equally, with the husband to pay the wife 50 per cent of the sum(s) quoted within 72 hours.
31. The wife is to advise the husband as soon as practicable of the following in respect of the Town C sale:
(a) The reserve price and the sale price;
(b) The date of exchange of the contract for sale;
(c) The likely date of settlement; and
(d) A copy of the first page of the contract of sale.
32. Any communication the wife is required to engage in with the husband is to occur via the My Family Wizard application, or if the wife deems appropriate, by email correspondence.
33. Notwithstanding the ultimate sale price of the Town C property and for the purposes of calculating the parties’ entitlement pursuant to these orders, the sale price is deemed at $1,400,000.
34. Upon completion of the sale of the Town C property, the wife is to receive the sum of $723,176 less $25,000 and one half of any capital gains tax assessed to be paid upon sale, and the balance is to be paid to the husband less one half of the assessed capital gains tax.
35. The funds withheld to pay assessed capital gains tax shall be held in an interest-bearing account in both parties’ names by the wife’s solicitors until the tax becomes payable when it is to be paid to the Australian Taxation Office by the wife’s solicitors, and any surplus funds in the account after payment of the capital gains tax is to be paid to the parties equally.
36. Upon the wife being appointed as trustee for sale, and pursuant to section 114 of the Family Law Act 1975 (Cth), the husband, Mr Rodelo born 1975, whether himself, his agents or servants, is restrained by injunction from:
(a) Doing any act or thing to change or restrict the wife’s access to the Town C property or any part of that property;
(b) Causing or permitting any dealing with respect to the Town C property, and his interest therein, including but not limited to by way of transfer, assignment, charge or encumbrance;
(c) Causing or permitting any increase in the amount owing on any facility secured over or by reference to the Town C property;
(d) Causing or permitting any person or entity to obtain any interest in or entitlement in or by reference to the Town C property, whether in equity, pursuant to the Family Law Act 1975 (Cth), the Property (Relationships) Act 1984 (Cth), or otherwise;
(e) Causing the current mortgage with the Commonwealth Bank of Australia …10 to exceed $308,074;
(f) Attending the Town C property except to attend any auction; and
(g) Contacting the agent appointed to sell the Town C property or any putative purchaser.
37. Except as specifically provided for by these orders, the wife is the sole owner of and the husband has no interest in:
(a) All bank accounts in the wife’s name;
(b) The wife’s motor vehicle;
(c) The wife’s superannuation entitlements; and
(d) All other property and financial resources of whatsoever nature and kind in the possession or ownership of the wife at the date of the making of these orders and in the future.
38. Except as specifically provided for by these orders, the husband is the sole owner of and the wife has no interest in:
(a) All real property in the husband’s name, including but not limited to the property known as H Street, Suburb E, New South Wales;
(b) All bank accounts in the husband’s name;
(c) The husband’s shareholdings;
(d) The husband’s motor vehicle;
(e) The husband’s superannuation entitlements; and
(f) All other property and financial resources of whatsoever nature and kind in the possession or ownership of the husband at the date of making of these orders and in the future.
39. Except as specifically provided for by these orders:
(a) The husband shall indemnify the wife from and in respect of all actions, claims, pursuits and demands as may be made against the wife in relation to all liabilities in the name of the husband; and
(b) The wife shall indemnify the husband from and in respect of all actions, claims, pursuits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
40. Pursuant to section 106A of the Family Law Act 1975 (Cth), in the event the husband neglects, refuses or is unable to sign any document required for the execution of these orders, the wife may approach a Registrar of the Federal Circuit and Family Court of Australia for the Registrar to execute the deed or instrument in the name of the husband.
Child Support
41. Pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth), the Court makes a departure order, and the father is to pay, in addition to periodic child support as assessed from time to time, the following:
(a) In respect of education related costs and expenses for each child, 50 per cent of the following costs:
(i) All school fees, enrolment fees and non-refundable deposits, tuition fees and levies;
(ii) All school uniforms, school shoes, sports uniforms and sport shoes costs;
(iii) All excursion costs and expenses, including school camps;
(iv) All stationary, textbooks and computers; and
(v) All school computing equipment, music equipment, drama classes, sporting equipment and participation costs.
(b) In respect of medical expenses relating to the children, in the event that the following children’s medical expenses are not covered by private health insurance or Medicare, 50 per cent of all costs incurred in respect of treatment by general and specialist practitioners, orthodontic, dental, emergency services, medical, hospital, pharmaceuticals, physiotherapy, speech therapy, occupational therapy, paediatric and psychological services.
42. All non-periodic payments made by the father in respect of the children’s education or schooling costs, pursuant to Order 41 hereof, are to be paid directly to the children’s current school(s), or any other school the children attend which is presently:
(a) J School, Suburb K;
(b) L School, Suburb M; and
(c) N School, Suburb P.
43. All non-periodic payments made by the father pursuant to Order 41 are to be paid to the provider upon receipt of an invoice as and when due, and in the event the mother has paid these costs in whole in the first instance, the father will reimburse the mother in respect of same within 7 days of the mother providing the relevant invoice, account or receipt confirmation to the father.
44. Within 7 days of the date of these orders, the mother is to serve the Child Support Registrar with a copy of these orders and Reasons for Judgment.
45. Orders 41–43 inclusive are stayed for 35 days.
46. In the event the Child Support Registrar has previously been provided notice of the mother’s application under the Child Support (Assessment) Act 1989 (Cth), then the stay in Order 45 is lifted.
Costs
47. Within 60 days of these orders, the parties are to each pay costs in respect of the Independent Children’s Lawyer in the sum of $8,640.50 AND THE COURT NOTES the mother has paid her initial contribution of $1,650.00, lowering the costs payable by her to $6,990.50.
Miscellaneous
48. Each party shall notify the other party of any change of address or contact details, including but not limited to an email address and mobile phone number, no less than 14 days prior to any change of address or contact details.
49. Leave is granted to Ms Muir to provide a copy of these orders and/or these Reasons for Judgment to any of the following:
(a) Any medical practitioner she or the children attend now or in the future;
(b) Any school or after-school care the children attend;
(c) The selling agents of the Town C property; and
(d) Any police station or police officer.
AND THE COURT NOTES THAT:
A. The mother has no objection to Ms D contacting her on any occasion to discuss issues concerning the children and/or being the father’s agent to return the children to her. The mother seeks that in an emergency concerning the children, Ms D be her initial point of contact.
B. Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in ‘Annexure A’ and those particulars are included in 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I will not make a superannuation splitting order for reasons already set out earlier, but I note Mr Rodelo has some $140,000 more in superannuation than Ms Muir.Consideration of matters of justice and equity Having regard to the preceding discussion, I am satisfied that this division of the pool of assets is just and equitable.[118][118] Family Law Act 1975 (Cth) s 79(2).Injunctions Ms Muir sought an array of injunctions pursuant to section 114 of the Act. These injunctions are in relation to the Town C property and when Ms Muir is appointed the trustee for its sale. Mr Rodelo has previous experience in interfering with the Town C property, notably under‑selling it to his girlfriend at the time. In circumstances where I am making an order that Ms Muir be appointed the trustee for its sale, and where I am satisfied on the balance of convenience that Mr Rodelo have these restraints imposed upon him, given his vengeful nature and deceitful behaviour, it is appropriate such injunctions be made to ensure a smooth sale.COSTS The ICL sought costs in the sum of $8,640.50 from both parties, totalling $17,281. Ms Shea informed me that these costs were only for the hearing days after the conclusion of the hearing on 15 July 2022. It is appropriate I make an order for these costs to be paid, given the significant reduction in the costs that could have been sought and that it was essential an ICL be appointed in this matter. Therefore, I will make the orders as sought by the ICL, noting that Ms Muir has paid the initial contribution of $1,650.[119][119] Family Law Act 1975 (Cth) s 117. Further, Ms Muir sought orders in relation to costs. It is more appropriate that this be dealt with separately and each party may file such application as they deem appropriate.CONCLUSION I make the orders as set out in the forefront of these Reasons for Judgment.