FEDERAL CIRCUIT COURT OF AUSTRALIA
| OAKLAND & OAKLAND | [2018] FCCA 1405 |
| Catchwords: FAMILY LAW – Applications for parenting and property adjustment orders – best interests of children – assessment of contributions – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 75, 79 Limitation Act 1969 (NSW), s.14 |
| Cases cited: Young v Queensland Trustees Ltd (1956) 99 CLR 560 In the Marriage of Harris (1991) 104 FLR 458 Davey v Lee (1990) DFC 95-084 Pierce & Pierce [1998] FamCA 74 Dickons & Dickons [2012] FamCAFC 154 Trebiano & Trebiano [2018] FamCA 344 |
| Applicant: | MS OAKLAND |
| Respondent: | MR OAKLAND |
| File Number: | PAC 1709 of 2015 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 21, 22, 23 February 2018 |
| Date of Last Submission: | 23 February 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 28 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Schroder |
| Solicitors for the Applicant: | Mark Brown & Associates |
| Counsel for the Respondent: | Mr R Harper |
| Solicitors for the Respondent: | Armstrong Legal |
ORDERS
That the parties shall have equal shared parental responsibility in consultation with each other for making decisions about the long term care, welfare and development of the child [X] (born 2007).
That each party respectively shall have sole parental responsibility for making decisions about the day to day care, welfare and development of the said child whilst the said child in their respective care.
That the said child live with the mother.
That the said child spend time with the father as follows:
(a)Each alternate weekend from after school Wednesday to the commencement of school Monday.
(b)In the event that any such weekend falls on a long weekend including a Monday then it shall be extended to the commencement of school on Tuesday.
(c)For one half of each school holiday period other than Christmas by agreement and failing agreement for the first half in years ending with an even number and the second half in years ending with an odd number.
(d)For one half of the Christmas school holiday period in 2 two week blocks by agreement, and failing agreement, commencing at the start of the Christmas school holidays in even numbered years and commencing two weeks after the start of the Christmas school holidays in odd numbered years.
(e)From 9.00am 24 December 2017 to 9.00am 25 December 2017, provided the child shall be in the wife’s care from 9:00 am 25 December 2017 to 9:00 am 26 December 2017, and each alternate year thereafter, and that that arrangement shall be reversed in the intervening years.
(f)For a period of 6 hours on the father’s birthday if the child is not already in the father’s care, provided that the child shall be with the mother on the mother’s birthday for a period of 6 hours if the child is not already in the mother’s care on the wife’s birthday.
(g)On the birthday of the child for 2 hours if a school day and 4 hours if a non-school…
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- Oakland and Oakland [2018] FCCA 1405
- Case
- [2018] FCCA 1405
- Decision Date
CaseChat Overview and Summary
The court was required to determine the nature and extent of shared parental responsibility for the child, including decisions regarding long-term care, welfare, and development, as well as day-to-day decision-making. Additionally, the court had to establish a schedule for the child's time with each parent, including provisions for holidays and special occasions. The court also addressed the division of the parties' property, specifically a property known as Property A, a motor vehicle, and household chattels, as well as the payment of ongoing expenses related to the former matrimonial home.
Judge Newbrun ordered that the parties share equal responsibility for long-term decisions concerning the child's care, welfare, and development, while each parent would have sole responsibility for day-to-day decisions when the child was in their care. The child was ordered to live with the mother, with specific, detailed provisions for the father's time with the child, including alternate weekends, half of school holidays, and specific arrangements for birthdays and public holidays. The orders also included prohibitions against physical chastisement and denigration of the other parent, and detailed requirements for communication regarding the child's health and schooling. Furthermore, the father was restrained from consuming illicit drugs for a period and required to undergo drug testing. The court also made detailed orders for the sale of Property A, with the proceeds to be disbursed in a specified order, including legal costs, mortgage payments, a payment to the maternal grandmother, and the net balance to be divided between the parties. The father was ordered to transfer his interest in a motor vehicle to the mother, and a process was established for the division of furniture and chattels. The court also appointed the Registrar to execute documents if a party refused to do so.
Orders
Orders of the court
1.
That the parties shall have equal shared parental responsibility in consultation with each other for making decisions about the long term care, welfare and development of the child [X] (born 2007).
2.
That each party respectively shall have sole parental responsibility for making decisions about the day to day care, welfare and development of the said child whilst the said child in their respective care.
3.
That the said child live with the mother.
4.
That the said child spend time with the father as follows:
(a) Each alternate weekend from after school Wednesday to the commencement of school Monday.
(b) In the event that any such weekend falls on a long weekend including a Monday then it shall be extended to the commencement of school on Tuesday.
(c) For one half of each school holiday period other than Christmas by agreement and failing agreement for the first half in years ending with an even number and the second half in years ending with an odd number.
(d) For one half of the Christmas school holiday period in 2 two week blocks by agreement, and failing agreement, commencing at the start of the Christmas school holidays in even numbered years and commencing two weeks after the start of the Christmas school holidays in odd numbered years.
(e) From 9.00am 24 December 2017 to 9.00am 25 December 2017, provided the child shall be in the wife’s care from 9:00 am 25 December 2017 to 9:00 am 26 December 2017, and each alternate year thereafter, and that that arrangement shall be reversed in the intervening years.
(f) For a period of 6 hours on the father’s birthday if the child is not already in the father’s care, provided that the child shall be with the mother on the mother’s birthday for a period of 6 hours if the child is not already in the mother’s care on the wife’s birthday.
(g) On the birthday of the child for 2 hours if a school day and 4 hours if a non-school day, provided the mother shall have the same period of time with the child if the child would otherwise be in the father’s care on the child’s birthday.
(h) On the Father’s Day weekend from 6:00 pm Saturday until commencement of school on the following Monday provided the husband’s time with the child shall be suspended on the Mother’s Day weekend during the same times.
(i) Such further times as the parties may agree.
5.
That periodic time shall be suspended during school holiday periods and resume following the commencement of each school term in the same pattern as if school holidays had not intervened.
6.
That school holidays shall be deemed to commence at 9:00 am following the last day of attendance at school and conclude at 5:00 pm immediately prior to the first day of attendance at school in the new term.
7.
That for the purpose of facilitating Orders for time other than at school, the father shall collect the child from the mother’s residence at the commencement of time and the mother shall collect the child from the father’s residence at the conclusion of time.
8.
That neither party physically chastise the child, nor allow any other person to do so.
9.
That neither party denigrate the other parent or anyone living in a close personal relationship with the other parent, to the child, nor allow any other person to do so.
10.
That each party shall keep the other informed of any significant issues relating to the health and general wellbeing of the child and shall forthwith advise the other of any accident or significant illness affecting the child including providing details of treatment and attendance at doctors and hospitals.
11.
That in the event that the child is referred to a specialist medical practitioner, the party who arranged the referral shall:
(a) Consult with the other party prior to making an appointment for the child;
(b) Advise the other party of the details of the specialist medical practitioner;
(c) Ensure that sufficient time be allowed prior to the appointment to enable the other party to attend;
(d) And in the event of a change of appointments, shall forthwith notify the other party of such changed details.
12.
That each parent forthwith notify the other by text message or email when giving consent for the child to be involved in any school or extracurricular activity for which parental consent is required.
13.
That
(a) The father be and is hereby restrained from consuming illicit drugs including but not limited to marijuana 48 hours prior to and during the time when he is caring for the child.
(b) For a period of twelve months following these final Orders the father undergo chain of custody urinalysis screening pursuant to the requisite Australian standards for illicit drugs including but not limited to marijuana, on at least 6 random occasions selected by the mother, and within 24 hours of the mother requesting same by e-mail sent to the father.
(c) The father to advise the mother by e-mail within 2 hours of undergoing such drug screening, the name and address of the drug screening agency and the time at which he underwent urinalysis testing.
(d) The father supply to the mother by e-mail scanning within 12 hours of receipt by him of the result of the urinalysis testing.
14.
That the child may communicate with each of the parties by telephone, or video such as Skype or Facetime, at any reasonable time requested by the child, and the parent with whom the child is living, shall facilitate such communication.
15.
That each parent be permitted to travel overseas with the child to Hague Convention countries only and for periods of time when that parent is otherwise spending time with the child as provided by these Orders, unless otherwise agreed in writing with the other parent.
16.
Pursuant to Section 65DA(2) the obligations that these Orders create and the consequences that may follow if a person contravenes these Orders, details of which are annexed, are included in these Orders.
17.
That each party shall forthwith take all necessary steps and sign all documents to cause the property situate at and known as Property A and being more particularly described in Certificate of Title to be sold by private treaty at the earliest possible date at a price and with an agent to be agreed between the parties, and failing such agreement to be determined by the President of the NSW Division of the Australian Property Institute or his nominee and that the proceeds of sale be disbursed in accordance with these Orders.
18.
That in the event that the said property fails to be sold by private treaty within a period of 4 months, the parties shall at the request of either of them, take all necessary steps and execute all necessary documents to cause the said property to be sold by auction at the earliest possible date at a reserve to be agreed between the parties, and failing such agreement, to be determined by the President of the NSW Division of the Australian Property Institute or his nominee and that the proceeds of the said sale be disbursed in accordance with these Orders.
19.
If the property is not sold at auction then the parties shall follow the directions contained in Orders 17 and 18 herein so far as they apply provided a period of 5 calendar months shall elapse after the attempted auction sale before the property is again put to public auction.
20.
That the proceeds of sale of the property situate at and known as Property A be disbursed in the following manner.
(a) The payment of legal costs and agent's costs on sale.
(b) The payment of any mortgage.
(c) The payment to the maternal grandmother of a sum of $34,000.00, relating to an acknowledgment of monies owed to the maternal grandfather’s estate.
(d) The net balance be divided as to 55% to the mother and 45% to the father.
21.
That the father continue to pay as they fall due, all regular instalments in respect of the mortgage, council rates, water rates, household insurance in respect of the property.
22.
And the Court notes that the monthly mortgage payment due to be paid by the father is the interest and capital inclusive amount on the loan set by Bank 1, currently in the sum of $1,934.00.
23.
That the father forthwith do all things and sign all documents necessary to transfer to the mother all of his right title and interest in the Motor Vehicle A registered number.
24.
That within seven (7) days of the date of this Order, the father provide to the mother two lists of all furniture and chattels located within the former matrimonial home, and that within seven (7) days thereafter, the mother shall choose furniture and chattels in one list, and the father shall thereafter allow the mother and/or her representative to attend at the home to collect all furniture and chattels on the mother’s list.
25.
That the father and mother do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
26.
That in the event that either party refuses to execute any deed or instrument necessary to give effect to these Orders, within seven (7) days of being requested so to do, the Registrar of the Court be appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
27.
That except as otherwise provided for in this Order the father and mother each be the sole legal and beneficial owners of all items of all property including furniture, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively to the exclusion of the other.
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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