ABBEY & ABBEY - [2011] FMCAfam 1072

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABBEY & ABBEY

[2011] FMCAfam 1072

FAMILY LAW – Parenting – property – separated siblings – oldest child estranged from father – both parents lack capacity – both parents neglect the responsibilities of parenthood – costs for Independent Children’s Lawyer.

Family Law Act 1975, ss.75 (2), 117

Jones v Dunkell (1959) 101 CLR 298
Rice v Asplund (1979) FLC 90-725
H v W (1995) 92-598
R v R (Children’s Wishes) (2000) FLC 93-108
Re G: Children’s Schooling (2000) FLC 93-025
Black v Kellner (1992) FLC 92-287
Weir v Weir (1993) FLC 92-338

Applicant:

MS ABBEY

Respondent:

MR ABBEY

File Number:

PAC 4003 of 2008

Judgment of:

Dunkley FM

Hearing dates:

25, 26 and 27 August 2009, 27 October 2009, 11, 12 and 13 October 2010, and 23 and 24 December 2010

Date of Last Submission:

4 April 2011

Delivered at:

Parramatta

Delivered on:

13 October 2011

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Karen L Haga & Associates

Counsel for the Respondent:

Mr Schroder

Solicitors for the Respondent:

Watts McCray Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Gilles

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Parramatta Family Law

ORDERS

All prior parenting orders are discharged, except for orders made on

23 December 2010 and except for orders made relating to [X]’s schooling.
The mother shall have sole parental responsibility for the children [X] born [in] 1999 and [Y] born [in] 2000 except for issues relating to the children’s education. For the issues of education the parents shall have equal shared parental responsibility.
[X] shall live with the mother.
[X] shall spend such time with her father as is arranged between her and the father.
[Y] shall live with his father each alternate week from after school Monday until the end of the school day on Monday the next week.
[Y] shall live with his mother each other week.
The father shall cause [Y] to be enrolled at [O] School commencing in 2013 and thereafter [Y] shall attend [O] School for his high school education and the father shall be solely responsible for the payment of [Y]’s school fees and expenses. The father shall authorise and direct the school to provide information and notices to the mother about but not limited to [Y]’s school attendance, attainments and progress and she shall be entitled to attend all school events to which parents are invited.
In the event there is no place available for [Y] at [O] School, both parents shall cause [Y] to be enrolled at [F] School and the parents shall equally pay [Y]’s school fees and expenses at [F] School.
Each parent shall purchase at least one (1) full set of school uniforms and sports uniforms for [Y] for the high school at which he attends.
Neither party shall register or enrol [Y] in any out of school activity without the other parent’s consent if that activity would necessitate weekly involvement.
Each party shall notify the other…

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 ABBEY & ABBEY

Details

AGLC: ABBEY & ABBEY [2011] FMCAfam 1072
Case: [2011] FMCAfam 1072
Decision Date: 13 October 2011

CaseChat Overview and Summary

In the Federal Circuit Court, the case of Abbey & Abbey involved the parents of two children, [X] and [Y], who were contesting various parenting and property issues. The mother and father had been married and separated, and their dispute involved decisions regarding the children’s residence, schooling, and financial arrangements between the parties. The court was tasked with determining the allocation of parental responsibilities, the living arrangements for the children, and the division of property between the parties.

The central legal issues in this case were the determination of the children's living arrangements, the allocation of parental responsibility for various aspects of the children's lives, and the division of the matrimonial property. The court had to consider the welfare and best interests of the children as the paramount consideration, along with the parents' capacity to provide for the children’s physical, emotional, and educational needs. Additionally, the court was required to equitably divide the matrimonial property in accordance with the principles outlined in the Family Law Act 1975.

The court found that the mother should have sole parental responsibility for the children except for issues relating to their education, where both parents would share equal responsibility. The children’s living arrangements were ordered such that [X] would live with the mother and spend time with the father as arranged between them, while [Y] would have a more structured alternating weekly arrangement between the parents. The court also directed that [Y] would attend a specific school, with the father being responsible for enrolling him and paying the fees. In terms of property division, the court ordered the husband to pay the wife a lump sum and directed the transfer and refinancing of a specific property, with provisions for its sale if the payment was not made within the stipulated timeframe. Additionally, the court declared the wife as the sole owner of another property and ordered contributions towards legal costs.

The court’s final orders included the discharge of previous parenting orders except for specific ones, detailed arrangements for the children's living and educational arrangements, financial orders for property settlement and child support, and provisions for enforcement and compliance. The orders ensured that the children's welfare was prioritised while also addressing the financial and property implications of the separation.

Orders

Orders of the court

All prior parenting orders are discharged, except for orders made on

23 December 2010 and except for orders made relating to [X]’s schooling.

The mother shall have sole parental responsibility for the children [X] born [in] 1999 and [Y] born [in] 2000 except for issues relating to the children’s education. For the issues of education the parents shall have equal shared parental responsibility.

[X] shall live with the mother.

[X] shall spend such time with her father as is arranged between her and the father.

[Y] shall live with his father each alternate week from after school Monday until the end of the school day on Monday the next week.

[Y] shall live with his mother each other week.

The father shall cause [Y] to be enrolled at [O] School commencing in 2013 and thereafter [Y] shall attend [O] School for his high school education and the father shall be solely responsible for the payment of [Y]’s school fees and expenses. The father shall authorise and direct the school to provide information and notices to the mother about but not limited to [Y]’s school attendance, attainments and progress and she shall be entitled to attend all school events to which parents are invited.

In the event there is no place available for [Y] at [O] School, both parents shall cause [Y] to be enrolled at [F] School and the parents shall equally pay [Y]’s school fees and expenses at [F] School.

Each parent shall purchase at least one (1) full set of school uniforms and sports uniforms for [Y] for the high school at which he attends.

10.

Neither party shall register or enrol [Y] in any out of school activity without the other parent’s consent if that activity would necessitate weekly involvement.

11.

Each party shall notify the other party of any medical treatment received by either child.

12.

Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequence that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in the orders.

13.

The husband shall pay to the wife the sum of $62,659.00 within ninety (90) days of the date hereof.

14.

Simultaneous with and conditional upon order 13 the wife shall transfer to the husband her right title and interest in Property T.

15.

Simultaneous with and conditional upon order 13 and 14 the husband shall refinance any mortgage or loan secured over Property T into his sole name.

16.

If the husband has not complied with orders 13 and 15 within ninety (90) days of the date hereof order 4 made on 12 February 2010 is discharged and the husband shall thereafter within fourteen (14) days list for sale by auction the [S] property with a reserve of $395,000 or lesser agreed reserve and on sale shall cause the proceeds to be disbursed as follows:

(a) In payment of auction fees and expenses;

(b) In payment of real estate agents commission and expenses;

(d) In discharge of any mortgage secured over the property;

(e) In payment to the wife of the sum of $62,659.00 together with interest calculated in accordance with the rules for the period after ninety (90) days from the date of these orders until the date of payment;

(f) In payment of any balance to the husband.

17.

If the wife has not received $62, 659.00 plus any due interest, within 150 days of the date of these orders the property at Property T shall then be listed for sale by auction and on completion of the sale the proceeds shall be disbursed:

(a) In payment of auction fees and expenses;

(b) In payment of real estate agents commission and expenses;

(d) In discharge of any mortgage secured over the property;

(e) In payment of the wife of $62,659 (or any outstanding balance thereof) together with interest calculated as provided in order 16(e);

(f) In payment of any balance to the husband.

18.

The wife is declared solely entitled to the property at Property E.

19.

It is ordered that subject to the preceding the husband and wife are to have the sole right, title and interest in:

(a) Any chattels, goods, furnishings and other property not previously dealt with as part of these orders which are, at the date hereof in their possession respectively;

(b) Any monies, shares, debentures and superannuation entitlements not previously dealt with as part of these orders which stand in their sole name respectively at the date hereof.

20.

That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

21.

That in the event that either party refuses or neglects to execute any deed or instrument within fourteen (14) days of being requested to do so then a Registrar of the Court be appointed pursuant to section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.

22.

Each party shall pay to Legal Aid NSW within ninety (90) days of the date of this order a contribution towards the Independent Children’s Lawyers costs in the sum of $1,500.00.

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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