FEDERAL CIRCUIT COURT OF AUSTRALIA
| TEAL & CORNELL | [2019] FCCA 2400 |
| Catchwords: FAMILY LAW – Property – adjustment of property interests – assessment of contributions – orders made adjusting property interests. FAMILY LAW – Child Maintenance – whether special circumstances exist for a child support departure order – three step process – order for lump sum child maintenance made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 90SF, 117 |
| Cases cited: Bevan & Bevan [2013] FamCAFC 19 |
| Applicant: | MS TEAL |
| Respondent: | MR CORNELL |
| File Number: | PAC 962 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 8, 9 and 19 November 2018 |
| Date of Last Submission: | 19 November 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 3 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Haezlewood |
| Solicitors for the Applicant: | Lewarne Goldsmith |
| Appearing for the Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Mr Givney |
| Solicitors for the Independent Children's Lawyer: | Legal Aid New South Wales |
ORDERS
All prior orders are discharged.
The applicant shall have sole parental responsibility for the children X born … 2005 and Y born … 2008.
The children shall live with the applicant.
The children shall spend no time with the respondent.
The Court being satisfied that there are special circumstances, that one or more grounds of departure exist pursuant to s117 of the Child Support (Assessment) Act 1989, it being just and equitable, pursuant to s124 of the Child Support (Assessment) Act1989 a lump sum amount of $150,000 is to be paid by the respondent to the applicant for the support of the children X and Y in lieu of the administrative assessment.
Payment of the lump sum child support departure amount pursuant to Order 5 above, is to be charged against the respondent’s interest in the property situate at and known as B Street, Suburb C.
Pursuant to s79 of the Family Law Act 1975 the respondent is to pay to the applicant the sum of $156,579 by way of property adjustment.
In the event that the respondent is unable to pay the lump sum child maintenance amount of $150,000 referred to in Order 5 above or the amount of $156,579 in accordance with Order 7 above within three months from…
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- AGLC
- TEAL & CORNELL [2019] FCCA 2400
- Case
- [2019] FCCA 2400
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the children were at risk of harm if they continued to spend time with the father, assessing his capacity and insight in relation to their care. Additionally, the court had to assess the parties' contributions to the relationship and their respective financial resources to make just and equitable property adjustment orders. Finally, the court needed to consider whether special circumstances existed to justify a departure from the standard child support assessment, and if so, to determine an appropriate lump sum amount for child maintenance.
The court found that the children were at risk and ordered that the applicant have sole parental responsibility, with the children to live with the applicant and spend no time with the respondent. In relation to property, the court ordered a property adjustment payment of $156,579 from the respondent to the applicant. Furthermore, the court was satisfied that special circumstances warranted a departure from the standard child support assessment, ordering the respondent to pay a lump sum of $150,000 for child maintenance. To facilitate these payments, the court ordered that the respondent's interest in a property be charged, and if the payments were not made within three months, the property was to be listed for sale with specific sale price reductions and disbursement of proceeds outlined. The remaining assets were to be retained by each party respectively.
Orders
Orders of the court
1.
All prior orders are discharged.
2.
The applicant shall have sole parental responsibility for the children X born … 2005 and Y born … 2008.
3.
The children shall live with the applicant.
4.
The children shall spend no time with the respondent.
5.
The Court being satisfied that there are special circumstances, that one or more grounds of departure exist pursuant to s117 of the Child Support (Assessment) Act 1989, it being just and equitable, pursuant to s124 of the Child Support (Assessment) Act 1989 a lump sum amount of $150,000 is to be paid by the respondent to the applicant for the support of the children X and Y in lieu of the administrative assessment.
6.
Payment of the lump sum child support departure amount pursuant to Order 5 above, is to be charged against the respondent’s interest in the property situate at and known as B Street, Suburb C.
7.
Pursuant to s79 of the Family Law Act 1975 the respondent is to pay to the applicant the sum of $156,579 by way of property adjustment.
8.
In the event that the respondent is unable to pay the lump sum child maintenance amount of $150,000 referred to in Order 5 above or the amount of $156,579 in accordance with Order 7 above within three months from the date of these orders then the respondent and applicant shall do all acts and things necessary to list for sale and sell the property situate at and known as B Street, Suburb C, in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier ….
9.
For the purposes of such sale referred to in Order 8 above, the applicant shall provide a list of three real estate agents together with their marketing options and Agency Agreements to the respondent and within seven days of being provided with such list the respondent shall nominate one of the agents to sell the B Street, Suburb C property.
10.
In the event that the respondent does not nominate one of the agents within seven days then the applicant is to nominate one of the agents and will sign all documents necessary to list the property at B Street, Suburb C for sale with this Order being sufficient evidence as to the applicant’s capacity to sign all documentation necessary to proceed with the sale of the B Street, Suburb C property.
11.
The B Street, Suburb C property shall be listed for sale at an asking price of $890,000 and in the event the property has not sold within a period of six weeks from the date that the property is listed on the market for sale then the asking price shall be reduced to a listing price of $850,000 and shall remain on the market at that asking price until sold or a further period of six weeks. In the event that the property has not sold within a further six weeks then the asking price will be reduced to $800,000.
12.
The proceeds of the settlement of the sale of the B Street, Suburb C property are to be disbursed as follows:
(a) In payment of the agent’s fees and legal fees of the sale;
(b) In payment of the outstanding Council and Water rates;
(c) In payment to the funds charged to the Legal Aid Commission for the Chapter 15 Expert Report in the sum of $3,300 as ordered by the Court on 21 December 2016;
(d) In payment to the applicant in the sum of $3,300 being half the cost of the Valuations for the Real Estate Assets paid by the applicant;
(e) In payment to the applicant in the sum of $150,000 representing the child maintenance order referred to in Order 5 above if such amount remains outstanding after three months of the making of these Orders;
(f) In payment to the applicant in the sum of $156,579 representing the property adjustment order referred to in Order 7 above if such amount remains outstanding after three months of the making of these Orders; and
(g) The balance then to be paid to the respondent.
13.
Except as otherwise provided for herein the applicant is to retain what is otherwise currently in her name, possession and control including her interest in the property situate at and known as D Street, Suburb E, and her interest in the property at F Street, Town G and the applicant’s superannuation entitlements. The applicant shall otherwise be responsible for any liability in her name.
14.
Except as otherwise provided for herein the respondent is otherwise to retain what is currently in his name, possession and control and shall be responsible for any liability in his name.
15.
In the event that either party refuses or neglects to sign any document or thing necessary to give effect to these Orders then a Registrar of the Federal Circuit Court shall sign all or any documents necessary to give effect to these Orders pursuant to section 106A of the Family Law Act 1975.
16.
Remove all outstanding issues from the list of cases awaiting finalisation.
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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