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PARTIES SOUGHT PARENTAL ORDERS RELATING TO THEIR SON WITH ASD AND PROPERTY ORDERS REGARDING CREDIT CARDS/PERSONAL LOANS AND TAX LIABILITIES

SAYER & CABELLO

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 104

 

This case involves an application that relates to both parenting and property matters following the breakdown of the parties’ 10-year relationship.

Facts:

Parties have a four-year-old son (X) who has special needs.  He has been diagnosed with Autism Spectrum Disorder (ASD), global developmental delay, sensory processing issues and severe language disorder.  In relation to parenting matters, Mr. Sayer (Father and Applicant) sought orders for equal shared parental responsibility for X, that X live with Ms. Cabello (Mother and Respondent) and spend unsupervised time with him for two nights per week.  On the other hand, Ms. Cabello sought sole parenting responsibility and that X spend no time with his father. 

Regarding property, Mr. Sayer argued that the credit cards/personal loans and taxation liabilities are their joint liabilities and should be paid prior to the equal division of their assets.  Ms. Cabello sought that Mr. Sayer be personally responsible for the credit card and personal loans taken out in his sole name during the relationship, as well as his outstanding taxation liabilities.  

Held:

Parenting:

  1. Whether or not equal shared parental responsibility will be in the best interests of X.
  2. Whether or not equal shared time or substantial and significant time is in X’s best interest.

The Court made orders that the mother have sole parental responsibility for X, that X live with her, and that he spends supervised time with his father each Saturday from 10:00 a.m. until 4:00 p.m.

Equal shared parental responsibility

Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them.  However, this presumption is rebutted if there are reasonable grounds to believe that either of the parents have engaged in abuse of the children or family violence or where there is evidence that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for their children.  In the circumstances of the case, it is apparent that it is not in X’s best interests for his parents to have equal shared parental responsibility as they are unable to communicate, and the father does not agree with the diagnoses of X’s special needs.  Hence, orders were made for Ms. Cabello to have sole parental responsibility for X.

Equal shared time or substantial and significant time

Whether or not an order is made for equal shared parental responsibility, the Court should still consider whether equal time or substantial and significant time is in the child’s best interest.[1] Given the facts, the Court found that the father poses a risk to X if he were to spend extended and unsupervised time with him.  He father is unable to accept X’s diagnosis and that he must parent X in the manner recommended by his treating specialists and therapists.  The Court made orders for the father to only spend limited time and not on weekdays to ensure that X’s current therapy and current weekly arrangements are not interrupted.

Property:

  1. Whether or not the credit card/personal loans and taxation liabilities are parties’ joint liabilities.

Credit cards/personal loans/taxation debts at separation

It appeared that Mr. Sayer made investments in relation to real estate and possibly shares with the view to improving and enhancing the parties’ financial circumstances.  The Court’s detailed examination of the bank statements and source documents in relation to the parties’ property transactions have to a large extent clarified how those properties were purchased and where the funds came from to enable the investments to take place.  Their property dealings have resulted in a net gain.  Hence, the Court was satisfied that the liabilities incurred should be considered joint liabilities of the parties and should be included in the pool of assets and liabilities of the parties.

 

[1] Goode & Goode [2006] FamCA 1346.

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