REEDS & ALBELO - [2011] FMCAfam 18

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REEDS & ALBELO [2011] FMCAfam 18

FAMILY LAW – Children – father wishes to take children to Disneyland – children’s anxiety – could have negative effect upon relationship with father – father opposed to children continuing in Catholic education system – children’s wishes – children performing in accordance with intellectual abilities – use of mobile telephone for children to communicate – communications book.

CHILD SUPPORT – Payment of Catholic school fees in lieu of periodic support.

Family Law Act 1975 (Cth), ss.60B, 60CC
Child Support (Assessment) Act 1989 (Cth), ss.117, 124, 125
Relationships Act 2003 (Tas), s.40

KB & TC (2005) FLC 93-224
Doyle and Doyle (1992) FLC 92-286
H v W (1995) FLC 92-598
Kannis & Kannis (2003) FLC 93-135
N & B [2003] FMCAfam 72

Applicant: MR REEDS

Respondent: MS ALBELO

File Number: HBC209 of 2010

Judgment of: Roberts FM

Hearing dates: 7, 8 & 9 December 2010

Date of Last Submission: 9 December 2010

Delivered at: Launceston

Delivered on: 28 January 2011
REPRESENTATION

Counsel for the Applicant: Mr J Munro and Mr W Ayliffe

Solicitors for the Applicant: John Munro

Counsel for the Respondent: Mrs R Courtney

Solicitors for the Respondent: PWB Lawyers
ORDERS
(1)That the Application filed 12 March 2010 on behalf of MR REEDS (“the father”) is dismissed.
(2)That [X] and [Y] both born [in] 1998 (“the children”) attend [M] School at [omitted] in Tasmania (“the College”) in 2011 and each remain enrolled at the College until she leaves school or completes Year 10 whichever is the earlier, unless otherwise agreed between the parties in writing, or as Ordered by a Court of competent jurisdiction.
(3)That MS ALBELO (“the mother”) and father forthwith take all steps necessary to enrol the children at the College.
(4)That pursuant to section 124 of the Child Support (Assessment) Act 1989 the father is to provide child support to the mother for the children for the period from 1 January 2011 to 31 December 2014 (“the period”) by way of payment of half of all school fees, levies, and costs of text books, excursions, and uniforms as and when they become payable for the children while the children attend the College, and the annual rate of Child Support payable by the father for the period is to be reduced by 100%.
(5)That pursuant to section 124 of the Child Support (Assessment) Act 1989 the mother is to provide child support to the father for the children for the period from 1 January 2011 to 31 December 2014 (“the period”) by way of payment of half of all school fees, levies, and costs of text books, excursions, and uniforms as and when they become payable for the children while the children attend the College, and the annual rate of Child Support payable by the mother for the period is to be reduced by 100%.
(6)That Order 4 on the third page of the Orders made by the Family Court of Australia on 5 February 2009 be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading REEDS & ALBELO

Details

AGLC: REEDS & ALBELO [2011] FMCAfam 18
Case: [2011] FMCAfam 18
Decision Date: 28 January 2011

CaseChat Overview and Summary

The case of Reeds and Albel involved a dispute between the parents, the father, Mr Reeds, and the mother, Ms Albel, regarding various issues concerning their children, [X] and [Y], both born in 1998. The primary concern was Mr Reeds' desire to take the children to Disneyland, despite their anxiety, and his opposition to their continued Catholic education. The court was also tasked with determining the appropriate means for the children to communicate with their parents and the payment of school fees as child support.

The court had to address whether the children should be taken to Disneyland, despite their anxiety, and whether they should continue their Catholic education. The court also needed to decide on the appropriate method of communication between the children and their parents and how to manage the payment of school fees as child support.

The court dismissed Mr Reeds' application to take the children to Disneyland, finding that their anxiety and potential negative impact on their relationship with him warranted a denial. The court mandated that the children attend [M] School in Tasmania and remain enrolled until they leave school or complete Year 10, unless otherwise agreed upon or ordered by a court. The court also ruled that the parents should use a communication book for relevant details and travel with the children during changeovers. Regarding child support, the court ordered the parents to pay half of all school fees, levies, and costs of textbooks, excursions, and uniforms, with the annual rate reduced by 100%.

The court ordered that Mr Reeds' application be dismissed, that the children attend [M] School in Tasmania, and that the parents use a communication book. The court also varied the child support payments, reducing the annual rate to half of the school fees, levies, and costs.

Orders

Orders of the court

(1) That the Application filed 12 March 2010 on behalf of MR REEDS (“the father”) is dismissed.

(2) That [X] and [Y] both born [in] 1998 (“the children”) attend [M] School at [omitted] in Tasmania (“the College”) in 2011 and each remain enrolled at the College until she leaves school or completes Year 10 whichever is the earlier, unless otherwise agreed between the parties in writing, or as Ordered by a Court of competent jurisdiction.

(3) That MS ALBELO (“the mother”) and father forthwith take all steps necessary to enrol the children at the College.

(4) That pursuant to section 124 of the Child Support (Assessment) Act 1989 the father is to provide child support to the mother for the children for the period from 1 January 2011 to 31 December 2014 (“the period”) by way of payment of half of all school fees, levies, and costs of text books, excursions, and uniforms as and when they become payable for the children while the children attend the College, and the annual rate of Child Support payable by the father for the period is to be reduced by 100%.

(5) That pursuant to section 124 of the Child Support (Assessment) Act 1989 the mother is to provide child support to the father for the children for the period from 1 January 2011 to 31 December 2014 (“the period”) by way of payment of half of all school fees, levies, and costs of text books, excursions, and uniforms as and when they become payable for the children while the children attend the College, and the annual rate of Child Support payable by the mother for the period is to be reduced by 100%.

(6) That Order 4 on the third page of the Orders made by the Family Court of Australia on 5 February 2009 be varied by deleting therefrom the sentence: “Each party shall have available an accessible land line telephone number service for use of the children for the purpose of telephone communication”.

(7) That the father and the mother are to utilise a communication book to record only relevant details relating to the children and that communication book is to travel with the children at changeover between the parties.

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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