FEDERAL CIRCUIT COURT OF AUSTRALIA
| TEITZEL & OLMAN & ANOR (No.2) | [2019] FCCA 3518 |
| Catchwords: FAMILY LAW – Parenting and property proceedings – Notice of Constitutional Matter pursuant to section 78B of the Judiciary Act 1903 (Cth) – application for an adjournment – first and second respondents failure to participate in the trial – proceeding on an undefended basis – final parenting and property orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZN (7), 60B, Part VII, 65C(c), 64B(2), 60H, 65CC, 69ZN(7), 60CA, 60CC, 65D(1), 61DA(1), 61DA(2), 61DA(4),60CC(2A), 60CC(1b), 60CC(1a), 64B(2)(g), 102QB, 102QE, 102QB(4), 90SM(4), 90SF(2), 90SM 4(d) to (g), 117(1), (2) and (2A) |
| Cases cited: Olman & Teitzel [2018] FamCAFC 11 |
| Applicant: | MS TEITZEL |
| First Respondent: | MR OLMAN |
| Second Respondent: | MS M |
| File Number: | MLC 547 of 2017 |
| Judgment of: | Judge Boymal |
| Hearing dates: | 17 & 20 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Renwick |
| Solicitors for the Applicant: | Westminster Lawyers Pty Ltd |
| The First Respondent: | In person via telephone |
| The Second Respondent: | No appearance |
| Counsel for the Independent Children’s Lawyer: | Mr Marchetti |
| Solicitors for the Independent Children’s Lawyer: | Trapski Family Law |
ORDERS
THE COURT ORDERS THAT:
The applicant mother and the Independent Children’s Lawyer have leave to proceed on an undefended basis.
The first respondent father’s application in a case filed 15 March 2019 be dismissed.
The applicant mother have sole parental responsibility for the children X born in 2009 and Y born in 2013 (the children).
The applicant mother advise the first respondent father within 7 days of any major long term decisions she has made in relation to the children or either of them.
The children live with the applicant mother.
The children spend supervised time with the first respondent father in Melbourne on such days and times as may be agreed between the applicant mother and the first respondent father such supervision to be conducted by the Family Contact Service, N Family Services or at a Children’s Contact Centre or by such other supervisor as may be agreed in writing between the applicant mother and first respondent father.
The costs of all supervision be paid by the first respondent father.
The children…
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- AGLC
- Teitzel & Olman & Anor (No.2) [2019] FCCA 3518
- Case
- [2019] FCCA 3518
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on the first respondent father's non-participation in the proceedings. The court granted leave to proceed on an undefended basis, effectively dismissing the first respondent father's application in the case. This decision paved the way for the court to make final parenting and property orders.
The court made extensive final orders, including granting the applicant mother sole parental responsibility for the children, with the children to live with her. The first respondent father was granted supervised time with the children, with the costs of supervision to be borne by him. The court also made orders regarding communication between the children and the first respondent father, and the disclosure of personal information. Significant property orders were made, including the disbursement of monies held in controlled and protected accounts, and the division of various assets and liabilities between the parties. The court also made orders restraining the removal of the children from the Commonwealth of Australia and directed the Australian Federal Police to place the children's names on the Airport Watch List. Finally, the court made orders regarding the payment of costs and provided a mechanism for the respondents to seek leave to set aside the orders within 21 days of service.
Orders
Orders of the court
THE COURT ORDERS THAT:
1.
The applicant mother and the Independent Children’s Lawyer have leave to proceed on an undefended basis.
2.
The first respondent father’s application in a case filed 15 March 2019 be dismissed.
3.
The applicant mother have sole parental responsibility for the children X born in 2009 and Y born in 2013 (the children).
4.
The applicant mother advise the first respondent father within 7 days of any major long term decisions she has made in relation to the children or either of them.
5.
The children live with the applicant mother.
6.
The children spend supervised time with the first respondent father in Melbourne on such days and times as may be agreed between the applicant mother and the first respondent father such supervision to be conducted by the Family Contact Service, N Family Services or at a Children’s Contact Centre or by such other supervisor as may be agreed in writing between the applicant mother and first respondent father.
7.
The costs of all supervision be paid by the first respondent father.
8.
The children communicate with the first respondent father via telephone each Tuesday between 7.30pm and 8.00pm with the first respondent father to initiate the call to the applicant mother.
9.
The first respondent father shall keep the applicant mother informed at all times of his residential address, contact telephone number and email address.
10.
The applicant mother shall keep the first respondent father and second respondent informed at all times of her contact telephone number and email address.
11.
The applicant mother shall advise the first respondent father and second respondent of any serious illness or injury suffered by the children (or either of them) as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the first respondent father to obtain information directly from any treating medical practitioners.
12.
Paragraph 5 of the Orders made 14 February 2017, where the applicant mother be restrained from moving within a 10 kilometre radius of Suburb E be discharged.
13.
Each of MS TEITZEL born in 1981 and MR OLMAN born in 1972 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born in 2009 (male) and Y born in 2013 (male) from the Commonwealth of Australia.
14.
X born in 2009 (male) and Y born in 2013 (male) be and are hereby restrained from leaving the Commonwealth of Australia.
15.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of two years.
16.
Upon expiration of the period referred to in Order 15 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.
17.
That X’s birth certificate and passport be released to the applicant mother MS TEITZEL born in 1981 from the documents produced under subpoena from the Department of Home Affairs.
18.
The monies currently held in the ANZ Controlled Money Investment Account No ...22 and the monies currently held in the ‘protected monies’ account administered by Westminster Lawyers, be disbursed after 28 days of the date of these orders as follows:
(a) Firstly, to repay Mr O and Ms P the sum of $30,000.00;
(b) Secondly, the balance (of approximately $335,917.00) to be paid to the applicant mother.
19.
The applicant mother retain to the exclusion of the first respondent father:
(a) Her superannuation entitlements;
(b) Any monies in her personal bank accounts;
(c) The household chattels and furniture in her possession; and
(d) The $10,000.00 part property payment paid to her.
20.
Unless otherwise specified for in these orders, the parties each remain liable for any liabilities in their respective names, including credit card debt.
21.
The first respondent father retain to the exclusion of the applicant mother:
(a) The house and land in Country L;
(b) His superannuation entitlements; and
(c) The $10,000.00 part-property payment received by him.
22.
Unless otherwise specified in these Orders:
(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b) Monies standing to the credit of the parties in any joint bank account are to become the property of the applicant mother and the account thereafter closed;
(c) Each party forego any claims they may have to any superannuation benefit belonging to or earned by the other;
(d) Insurance policies remain the sole property of the named owner;
(e) Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these Orders; and
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
23.
Within 60 days, the first respondent father pay or cause to be paid to the mother:
(a) The sum of $3,283.60 together with interest accrued from 29 January 2018 pursuant to the costs order made on 29 January 2018;
(b) The sum of $4,053.00 together with interest accrued from 4 February 2019 pursuant to the costs order made on 4 February 2019;
(c) The sum of $2,840.00 in relation to mother’s costs of 27 October 2017; and
(d) The sum of $4,053.00 in relation to the mother’s costs of 17 June 2019.
24.
Within 60 days the first respondent father pay or cause to be paid to the Independent Children’s Lawyer:
(a) The sum of $2,199.00 pursuant to the costs order made on 4 February 2019; and
(b) The sum of $1,548.00 in relation to the Independent Children’s Lawyers costs of 17 January 2019.
25.
Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 (“the Rules”) the first respondent father and second respondent may seek leave to set aside these orders upon filing an application and affidavit within 21 days of service of these orders.
26.
Within 48 hours the applicant mother’s solicitors and the Independent Children’s Lawyer forward a copy of these orders and reasons to the first respondent father at his email address ... .com and to the second respondent at her email address ... .com.
27.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
28.
That all extant applications are otherwise dismissed and removed from the Pending Cases List.
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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