FAMILY COURT OF AUSTRALIA
| O'LOUGHLIN & O'LOUGHLIN (NO. 2) | [2007] FamCA 1546 |
| FAMILY LAW – CHILDREN – With whom a child lives – Wife relocated with child unilaterally – Need to protect child from high level of conflict between parties – Child not yet affected due to young age – Allegations of domestic violence – Abusive and aggressive behaviour following separation by both parties – Need for parties to prioritise child’s needs – Child has close relationship with both parties – Whether equal time appropriate where would constitute significant change – Equal time not in child’s best interests given conflict and lack of communication, cooperation and trust between parties – Child to live with wife and spend substantial and significant time with husband FAMILY LAW – CHILD SUPPORT – Application seeking departure from administrative assessment and substitution order – Departure from assessed amount of child support husband to pay until child starts school – Husband to pay all child’s school fees and expenses, to be credited against administrative assessment and count for 100% of annual rate of child support payable |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA & 65DAA Child Support (Assessment) Act (Cth) 1989 ss 116, 117, 123, 124 & 125 |
| Forck & Thomas (1993) FLC 92-372 Padgen & Padgen (1991) FLC 92-321 G & G [2000] FamCA 12 Sheahan & Sheahan (1993) FLC 92-375 Savery & Savery (1990) FLC 92-131 |
| APPLICANT: | Mr O’Loughlin |
| RESPONDENT: | Ms O’Loughlin |
| INDEPENDENT CHILDREN’S LAWYER: | Lehmann Featherstone |
| FILE NUMBER: | TVF | 329 | of | 2005 |
| DATE DELIVERED: | 17 December 2007 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 28-31 May 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs Willis |
| SOLICITOR FOR THE APPLICANT: | Williams Graham Carman |
| COUNSEL FOR THE RESPONDENT: | Mrs Pack SC |
| SOLICITOR FOR THE RESPONDENT: | Cope Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Benson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lehmann Featherstone |
ORDERS
Child Issues
That the husband and the wife have equal shared parental responsibility for the child … born … July 2003.
That the said child live with the wife.
That the said child spend time with the husband as follows:
(a)Until the said child commences her preparatory year at school in 2009;
(i)from 4:00pm Friday until 4:00pm Monday each alternate weekend with the handover on the Friday to take place at Relationships Australia, …, and the handover at 4:00pm Monday to take place at ABC Learning Centre in S;
(ii)from 9:00am Monday until 9:00am Tuesday each alternate week immediately following the weekend when the child lives with the mother with handover to occur at the commencement and the conclusion of that period at the ABC Learning Centre in S;
(iii)during one half of each school holiday period on a week and week about basis with handovers to take place at 9:00am Saturday;
(iv)from 4:00pm Christmas Eve until 4:00pm Christmas Day in 2007 with handovers at the commencement and conclusion of that period to take place at McDonalds in S;
(v)from 4:00pm Christmas…
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- Case
- [2007] FamCA 1546
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining with whom the child should live, the extent of time the child should spend with each parent, and whether equal time was appropriate given the circumstances. Additionally, the court was required to consider an application for a departure from the administrative assessment of child support, specifically regarding the husband's obligations for school fees and expenses. The court had to balance the benefit of a meaningful relationship with both parents against the need to protect the child from harm, considering the parties' ability to cooperate and communicate effectively.
Strickland J applied the principles outlined in Section 60CC of the *Family Law Act 1975* (Cth), which mandates consideration of primary factors such as the benefit of a meaningful relationship with both parents and the need to protect the child from harm. The court found that while the child had a close relationship with both parents, the high level of conflict, lack of communication, cooperation, and trust between the parties made equal time inappropriate and not in the child's best interests. Consequently, the court ordered that the child live with the wife and spend substantial and significant time with the husband.
In relation to child support, the court ordered a departure from the administrative assessment. For the period until the child commenced school, the husband was to pay a reduced annual rate of child support. From the commencement of school, the husband was ordered to pay all school fees and expenses, which would be credited against his child support liability and count for 100% of the annual rate payable. The orders also included detailed provisions for the child's time with each parent, communication between the parties, and injunctions to protect the child from further conflict.
Orders
Orders of the court
Child Issues
1.
That the husband and the wife have equal shared parental responsibility for the child … born … July 2003.
2.
That the said child live with the wife.
3.
That the said child spend time with the husband as follows:
(a) Until the said child commences her preparatory year at school in 2009;
(i) from 4:00pm Friday until 4:00pm Monday each alternate weekend with the handover on the Friday to take place at Relationships Australia, …, and the handover at 4:00pm Monday to take place at ABC Learning Centre in S;
(ii) from 9:00am Monday until 9:00am Tuesday each alternate week immediately following the weekend when the child lives with the mother with handover to occur at the commencement and the conclusion of that period at the ABC Learning Centre in S;
(iii) during one half of each school holiday period on a week and week about basis with handovers to take place at 9:00am Saturday;
(iv) from 4:00pm Christmas Eve until 4:00pm Christmas Day in 2007 with handovers at the commencement and conclusion of that period to take place at McDonalds in S;
(v) from 4:00pm Christmas Day until 4:00pm Boxing Day in 2008 with handovers at the commencement and conclusion of that period to take place at McDonalds in S;
(vi) when the Easter holiday period does not coincide with a school holiday period, from 4:00pm Easter Thursday until 10:00am Easter Sunday with handover at the commencement of that period to take place at ABC Learning Centre in S and handover at the conclusion of that period to take place at McDonalds in S;
(vii) from 9:00am until 2:00pm on the child’s birthday in each year with handovers at the commencement and conclusion of that period to take place at McDonalds in S unless the child is attending at the ABC Learning Centre on that day in which case handovers at the commencement and conclusion of that period take place at that learning centre;
(viii) from 9:00am until 4:00pm on the husband’s birthday in each year with handovers at the commencement and conclusion of that period to take place at McDonalds in S unless the child is attending at the ABC Learning Centre in S on that day in which case handovers at the commencement and conclusion of that period take place at that learning centre;
(ix) in the event that the child is due to spend time with the husband pursuant to these orders on the wife’s birthday in each year then the same be suspended from 9:00am to 4:00pm on that day.
(b) Upon the child commencing her preparatory year at school in 2009:
(i) each alternate weekend commencing from the conclusion of the school day on Friday until the commencement on the Monday on the basis that the husband collect the child from school on Friday and deliver her to school on Monday PROVIDED THAT if the child is not attending school on either of those days then handover shall take place at McDonalds in S;
(j) from the conclusion of the school day on Monday until the commencement of the school day on Tuesday in the intervening week with the husband to collect the child from the school on Monday and return the child to the school on Tuesday;
(ii) for the first half of all Gazetted school holiday periods in 2009 and in each alternate year thereafter PROVIDED THAT the child shall live with the wife from 4:00pm Christmas Day to 4:00pm Boxing Day in each year when the child spends time with the husband for the first half of the Christmas school holiday period;
(iii) for the second half of all Gazetted school holiday periods in 2010 and in each alternate year thereafter PROVIDED THAT the child shall also spend time with the husband from 4:00pm Christmas Day to 4:00pm Boxing Day in each year when the child is spending the second half of the Christmas school holiday period with the husband;
(iv) in the event that the Easter period does not coincide with a Gazetted school holiday period then for one half of such period at times and at such place of handover as agreed between the parties;
(v) on the child’s birthday in each year, if a school day for two hours after school with the husband to collect the child from school and return the child to the wife at McDonalds in S but if not on a school day from 9:00am to 2:00pm on that day with handovers at the commencement and conclusion of that period at McDonalds in S;
(vi) on the husband’s birthday in each year, on a school day for two hours after school with the husband to collect the child from school and return the child to the wife at McDonalds in S, but if not on a school day from 9:00am to 4:00pm on that day with handovers at the commencement and conclusion of that period at McDonalds in S;
(vii) in the event that the child is due to spend time with the husband pursuant to these orders on the wife’s birthday in each year then the same be suspended from 9:00am to 4:00pm on that day.
4.
That the said child shall, until she is due to commence her preparatory year at school in 2009, attend at ABC Learning Centre in S at times nominated by the mother PROVIDED THAT no such time is to coincide with any time when the child is to spend time with the husband pursuant to these orders.
5.
The said child shall attend the R School as from her preparatory year in 2009 and each party shall do all acts and things and sign all such documents as may be necessary to ensure her attendance at that school PROVIDED THAT the child’s continued attendance at that school is always subject to the husband paying all school fees and other expenses at that school when such fees and expenses fall due for payment.
6.
In the event that the child is due to spend time with the husband pursuant to these orders on Mother’s Day in any year then that time is suspended from 9:00am until 5:00pm on that day.
7.
In the event that the child is due to be living with the wife pursuant to these orders on Father’s Day in any year then the child is to spend time with the husband from 9:00am until 5:00pm on that day with the handover of the child to take place at McDonalds [in S].
8.
Paragraphs (3)(a)(i) and (ii), and (3)(b)(i) and (ii) be suspended during any school holiday period.
9.
Each party do keep the other advised in writing of their residential address, landline and mobile telephone numbers at all times.
10.
Each party do keep the other advised in writing of the name and address of any medical practitioner or other health professional consulted by the said child from time to time.
11.
That each party be restrained and an injunction is granted restraining each of them from attending at the residence or place of work of the other of them.
12.
Each party will notify the other forthwith of any medical or health related emergency which impacts on the welfare and care of the said child.
13.
Each party will provide the necessary authorities to enable the other of them to obtain information from any medical practitioner or other health professional consulted by the said child.
14.
Each party is restrained and an injunction is granted restraining each of them from denigrating the other party or any member of their family or permitting the child to remain in the presence of any person when denigrating the other party or any member of their family.
15.
That the husband is restrained and an injunction is granted restraining him from discussing with the said child or any of her teachers, carers, educators and/or medical providers any of the facts or circumstances surrounding the deaths of … [the wife’s family member’s], or any alleged mental distress of the wife as a result of these issues.
16.
Each party shall attend a parenting course conducted by Relationships Australia as soon as is practicable.
17.
That until the child commences her preparatory year at school in 2009 the parties shall use a communication book to inform each other about the child’s care including but not limited to forthcoming activities for the child and health requirements of the child and such communication book shall pass with the child at handovers.
18.
That the husband be at liberty to attend any school function, event or activity to which parents are usually invited.
19.
Each parent shall ensure that the said child attends any scheduled activity for any sport or other extra-curricula activity in which the child participates and/or is enrolled while the child is in their care, whether on a week day or weekend.
20.
Each party is restrained and an injunction is granted restraining each of them from removing the said child from the far north Queensland area for holiday purposes without first providing to the other party at least one month’s written notice of the same, and which notice shall include an itinerary for the proposed travel.
Child Support
21.
That pursuant to Sections 117 and 118 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable by the husband to the wife for the child … born … July 2003 as follows:
(a) For the period from the date of these orders to 30 January 2009 the annual rate of child support be set at ONE THOUSAND NINE HUNDRED AND TWENTY DOLLARS [$1,920.00] (being the equivalent of ONE HUNDRED AND SIXTY DOLLARS [$160.00] per month);
22.
That pursuant to Section 124 of the Child Support (Assessment) Act 1989 from 31 January 2009 and for so long as the child … born … July 2003 continues to attend R School the husband provide child support for the said child as follows:
(a) The husband pay or caused to be paid within seven [7] days of the wife delivering accounts to the husband:
(i) all school fees incurred as a result of the child’s attendance at R School;
(ii) all costs of school books, school excursions organised by R School and school uniforms required by that school,
and this child support is to be credited against the husband’s liability under any relevant administrative assessment of the child support payable by the husband to the wife that relates to the said period and is to count for 100% of the annual rate of child support payable under any such relevant administrative assessment.
General
23.
That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 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 the attached Fact Sheet.
24.
That all applications be dismissed and removed from the active pending cases list.
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
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:Primary considerations(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))Additional considerations(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;(b)the nature of the relationship of the child with:(i) each of the child’s parents; and(ii) other persons (including any grandparent or other relative of the child);(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i)either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f)the capacity of:(i)each of the child’s parents; and(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;(h)if the child is an Aboriginal child or a Torres Strait Islander child:(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and(ii) the likely impact any proposed parenting order under this Part will have on that right;(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;(j)any family violence involving the child or a member of the child’s family;(k)any family violence order that applies to the child or a member of the child’s family, if:(i)the order is a final order; or(ii)the making of the order was contested by a person;(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))