FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEEDHAM & CASSIDY | [2016] FCCA 1477 |
| Catchwords: FAMILY LAW – Property – orders made as to the division of the parties’ property. |
| Legislation: Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art International Covenant on Civil and Political Rights, (16 December 1966), 999 UNTS 171, art 12 |
| Cases cited: A & A: Relocation Approach (2000) FLC 93-035 Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852 B & B: Family Law Reform Act 1995 (1997) FLC 92-788 Cales & Cales (2010) FLC 93-459 Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118 Ember & Assadi [2013] FamCAFC 107 Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 Potter v Minahan (1908) 7 CLR 277 Sampson & Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365 Sargood Bros v Commonwealth (1910) 11 CLR 258 Zanda & Zanda (2014) 293 FLR 1;(2014) FLC 93-607 J.A. Theobold, Maxwell on the Interpretation of Statutes (Sweet & Maxwell, 4th ed, 1905), 122 |
| Applicant: | MS NEEDHAM |
| Respondent: | MR CASSIDY |
| File Number: | MLC 9817 of 2015 |
| Judgment of: | Judge Brewster |
| Hearing dates: | 9, 10 & 11 May 2016 |
| Date of Last Submission: | 14 June 2016 |
| Delivered at: | Canberra |
| Delivered on: | 13 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harris |
| Solicitors for the Applicant: | Moores |
| Counsel for the Respondent: | Ms McDonnell |
| Solicitors for the Respondent: | McDonnell Law |
ORDERS
That in these Orders the term “contact” means spending time with.
That all previous orders in relation to the children X born (omitted) 2013 and Y born (omitted) 2015 (“the children”) be discharged.
That the parties have equal shared parental responsibility in relation to the children.
That the children live with the mother.
That the children have contact with the father as follows:
(a)Until X commences school the mother is to take the children to (omitted) once every eight weeks. The father is to have contact with the children in…
Continue reading NEEDHAM & CASSIDY
Sign in free to access the full text
- AGLC
- NEEDHAM & CASSIDY [2016] FCCA 1477
- Case
- [2016] FCCA 1477
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether it possessed the power to compel the mother to relocate the children from Victoria to New South Wales. Additionally, the court was required to determine appropriate parenting orders for the children and to make orders for the division of the parties' property.
Judge Brewster determined that the court did not have the power to make the order sought by the father requiring the mother to return the children to New South Wales. The court instead made orders for the children to live with the mother and to spend defined periods of time with the father, including provisions for travel and communication. The court also made orders for the division of property, including a payment from the father to the mother and the transfer of interests in specified properties, with alternative provisions for the sale of properties if the payment was not made.
Orders
Orders of the court
1.
That in these Orders the term “contact” means spending time with.
2.
That all previous orders in relation to the children X born (omitted) 2013 and Y born (omitted) 2015 (“the children”) be discharged.
3.
That the parties have equal shared parental responsibility in relation to the children.
4.
That the children live with the mother.
5.
That the children have contact with the father as follows:
(a) Until X commences school the mother is to take the children to (omitted) once every eight weeks. The father is to have contact with the children in this period from 10.00am on Friday to 4.00pm on Monday.
(b) On giving seven days notice the father may have contact with the children for periods of up to four days in Victoria. Again this will be from 10.00am on Friday until 4.00pm on Monday.
(c) When X commences school the mother will no longer be required to travel to (omitted) and the father is to have contact during school holidays as follows:
(i) During the first Christmas holiday period for two periods of seven days. One of these periods is to involve the mother taking the children to (omitted) and the other period is to involve the father travelling to (omitted). The father may choose the weeks involved but is to give the mother thirty days notice.
(ii) During the mid-year holidays for one half of those holidays, being the first half in even numbered years and the second half in odd numbered years.
(iii) For one half of the next and subsequent Christmas school holidays alternating between the first and the second half. If the father chooses to have the children over Christmas in the first of the Christmas holidays referred to in order 5(c)(i) above then he is to have the children in the second half of the holidays. Otherwise he is to have the children in the first half. Thereafter the time he spends with the children is to alternate between the first and second half in each year.
6.
That the parties arrange for the father to have Skype or Facetime contact with the children two days a week. The mother may nominate those days and times.
7.
That one half school holidays are to be calculated by dividing the number of days the child or children does not attend school by two. If this is an uneven number of days the father is to have the extra day.
8.
That holiday contact is to commence at 1.00pm and end at 1.00pm. The changeovers are to be at McDonalds on the (omitted) in (omitted).
9.
That where contact is in the second half of school holidays it will conclude two clear days before the children return to school. This is not intended to reduce the father’s time with the children.
10.
That the mother is to authorise any school that the children may attend to provide to the father copies of school reports and other material commonly sent to parents and to provide (at his expense) school photographs. Nothing in this order purports to require the school to cooperate in this respect.
11.
That the mother is to advise the father of any medical or health practitioners involved with the children and to authorise those people to provide the father with any information he may seek. Nothing in this order purports to require those people to cooperate in this respect.
12.
That each party is to promptly notify the other of any significant medical issue arising whilst the children are in his or her care.
13.
That the within 90 days the father pay the mother the sum of $107,500 (“the amount”).
14.
That upon payment of the amount the mother transfer to the father her interest in the property known as Property U.
15.
That the period of 90 days may be extended by the father if he proposes to raise the amount by selling his property at Property C, in which case it must be paid within a reasonable time. After the 90 days interest will be payable at the rate provided for in the Rules. The mother has liberty to have the matter relisted if she believes that a reasonable time has elapsed.
16.
That if the father chooses not to pay the amount the parties are to take all steps necessary to sell the properties referred to above and to divide the net proceeds as follows:
(a) To the mother an amount of A = (B/2) + $14,175) where A is the amount to be paid to her and B is the net proceeds of the sales.
(b) To the father the balance.
17.
That as against the other each party is entitled to the chattels in his or her possession and the choses in action in his or her name.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.