Abarca and Kadar - [2018] FCCA 1703

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABARCA & KADAR

[2018] FCCA 1703

Catchwords:
FAMILY LAW – Competing applications regarding final property and children’s proceedings – small property pool – how should debt be allocated between the parties – family violence – application for overseas travel – travel to a country that is not a signatory to Hague Convention - best interests – matters to be considered.

Legislation:

Family Law Act 1975, ss.4AB; 60B; 60CA; 60CC; 61DA; 62G; 64B

Cases cited:
Gin & Hing [2010] FamCA 617
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Bright v Bright (1995) FLC 92-570
Kaur & Kaur [2014] FCCA 2843

Applicant:

MS ABARCA

Respondent:

MR KADAR

File Number:

ADC 1470 of 2014

Judgment of:

Judge Brown

Hearing date:

21 June 2018

Date of Last Submission:

21 June 2018

Delivered at:

Adelaide

Delivered on:

29 June 2018

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

SE Lawyers

Counsel for the Respondent:

In person

Counsel for the Independent Children's Lawyer:

Ms Lindsay

Solicitors for the Independent Children's Lawyer:

Ian Charman & Associates

ORDERS

BY CONSENT THE COURT ORDERS:

That by way of final orders for property settlement in the past, present and future;
(a)That the wife shall retain for her sole use and benefit free from any further claim of the husband:-
(i)Her motor vehicle;
(ii)Her separate savings and investments;
(iii)All furniture, furnishings and personal effects in her possession;
(iv)Her superannuation and other employee entitlements;
(v)Any other property of the wife not otherwise specified.
(b)That the husband shall retain for his sole use and benefit free from any further claim of the wife:-
(i)His motor vehicle;
(ii)His separate savings and investments;
(iii)All furniture, furnishings and personal effects in his possession;
(iv)His superannuation and other employee entitlements;
(v)Any other property of the husband not otherwise specified.
That the parties shall retain rugs in their respective possession for the benefit of the child [X] born 2007 and with the said rugs to be gifted to the child upon his 18th birthday.
Save and except as specifically otherwise provided each of the parties shall be liable and responsible for the payment of debt incurred in his or her name and shall release the other party from any liability in respect thereto.
Subject to the specific provisions of this Order each party does hereby and shall release and discharge the other party from any liability from any claim that either one of them may have against the other in respect to any property either now or hereafter owned by either of them.
That all previous parenting and injunctive orders are hereby discharged.
That the mother do have sole parental responsibility for the child [X] born 2007 (the child).
That the child live with the mother.
That the mother do cause copies of the child’s twice yearly school reports, any medical reports and advise in writing of any medical interventions of significance to be forwarded to the father by his Mackenzie Friend, Mr W,…

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 Abarca and Kadar

Details

AGLC: Abarca and Kadar [2018] FCCA 1703
Case: [2018] FCCA 1703
Decision Date: 29 June 2018

CaseChat Overview and Summary

This matter came before Judge Brown concerning property settlement and parenting orders between the wife and the husband. The dispute involved the division of assets and liabilities, as well as arrangements for the parties' child, [X].

The court was required to determine the final property settlement between the parties, including the division of their respective savings, investments, superannuation, and other entitlements. Furthermore, the court needed to establish final parenting orders concerning the child's residence, parental responsibility, and communication with the non-resident parent. The court also had to address the discharge of outstanding debts and the release of passports for overseas travel with the child.

By consent, the court made final orders for property settlement, with each party retaining their motor vehicle, separate savings and investments, personal effects, and superannuation entitlements. The parties were to be responsible for their own debts, and each released the other from any further claims regarding property. In relation to parenting, the mother was granted sole parental responsibility, and the child was to live with her. The mother was to facilitate the child's wishes to spend time or communicate with the father and arrange for the child to receive therapeutic counselling. The court also ordered the release of the child's passport to the wife, dispensing with the husband's consent for its renewal and for overseas travel. The husband was ordered to discharge a specific debt to Real Estate within thirty days. All previous parenting and injunctive orders were discharged, and all applications were otherwise dismissed.

Orders

Orders of the court

BY CONSENT THE COURT ORDERS:

That by way of final orders for property settlement in the past, present and future;

(a) That the wife shall retain for her sole use and benefit free from any further claim of the husband:-

(i) Her motor vehicle;

(ii) Her separate savings and investments;

(iii) All furniture, furnishings and personal effects in her possession;

(iv) Her superannuation and other employee entitlements;

(v) Any other property of the wife not otherwise specified.

(b) That the husband shall retain for his sole use and benefit free from any further claim of the wife:-

(i) His motor vehicle;

(ii) His separate savings and investments;

(iii) All furniture, furnishings and personal effects in his possession;

(iv) His superannuation and other employee entitlements;

(v) Any other property of the husband not otherwise specified.

That the parties shall retain rugs in their respective possession for the benefit of the child [X] born 2007 and with the said rugs to be gifted to the child upon his 18th birthday.

Save and except as specifically otherwise provided each of the parties shall be liable and responsible for the payment of debt incurred in his or her name and shall release the other party from any liability in respect thereto.

Subject to the specific provisions of this Order each party does hereby and shall release and discharge the other party from any liability from any claim that either one of them may have against the other in respect to any property either now or hereafter owned by either of them.

That all previous parenting and injunctive orders are hereby discharged.

That the mother do have sole parental responsibility for the child [X] born 2007 (the child).

That the child live with the mother.

That the mother do cause copies of the child’s twice yearly school reports, any medical reports and advise in writing of any medical interventions of significance to be forwarded to the father by his Mackenzie Friend, Mr W, at the following address:-.

That should the child express to the mother a desire to spend time with or communicate with the father, then the mother will facilitate this wish.

10.

That the mother do all things necessary to arrange acceptance of the child into Child & Adolescent Mental Health Services for the purposes of therapeutic counselling of such length as may be suggested and recommended by the therapist who engages with the child.

11.

That the Independent Children’s Lawyer provide to CAMHS a copy of the following documents to assist in the therapeutic engagement and support of the child:

(a) A copy of this Order;

(b) A copy of the trial affidavit of the mother filed 31 May 2018;

(d) A copy of the Family Assessment Report by Mr I dated 1 November 2017.

THE COURT ORDERS THAT:

12.

The passport for the child [X] born 2007 be released to the wife by the Registry of this court.

13.

The wife be at liberty to renew the child’s passport upon expiration of the same and that the requirement for the husband’s consent be dispensed with.

14.

The wife be at liberty to travel overseas with the child and that the requirement for the husband’s consent be dispensed with.

15.

Within thirty (30) days of the making of this order the husband do discharge the three thousand three hundred and fifty nine dollars and eighteen cents ($3,359.18) debt outstanding to Real Estate and exonerate the wife in relation to the same.

16.

The appointment of the independent children’s lawyer be discharged.

17.

All applications be otherwise dismissed.

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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