Adamo & Vinci (No 2) - [2020] FamCA 873

FAMILY COURT OF AUSTRALIA

ADAMO & VINCI (NO. 2)

[2020] FamCA 873

FAMILY LAW – PARENTING – Where the children have been subjected to ongoing parental conflict – Where the children spend time with the father on an ad hoc basis – Where the children seek more regular time with the father – Where the father alleges parental alienation – Where the father has directed abusive and derogatory language towards the mother – Where one child suffers from an illness – Where it is in the best interests of the children to spend regular time with the father – Where the father has not taken time with the children when available – Orders for children to spend alternate weekends with the father.

FAMILY LAW – PROPERTY – Where the wife made significantly greater initial contributions – Where the husband and wife made equal contributions during the course of the marriage – Where the parties lived together for six years post-separation – Where the wife’s post separation contributions are significantly greater than the husband’s – Orders for wife to have 70 per cent of the property pool and the husband 30 per cent – Where there is a ten per cent adjustment to the wife for future needs.

Family Law Act 1975 (Cth) ss 65DAA, 75(2), 79(2), 90MT(1)(b)

APPLICANT:

Mr Adamo

RESPONDENT:

Ms Vinci

INDEPENDENT CHILDREN’S LAWYER:

Stidwill Solicitors

FILE NUMBER:

SYC

3598

2018

DATE DELIVERED:

16 October 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

21, 22 & 23 September 2020

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

Alidenes & Co Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stidwill Solicitors

Orders

IT IS ORDERED

PARENTING

That the parents have equal shared parental responsibility for the children X born … 2006 and Y born … 2009 (“the children”).
That the children live with the mother.
That the children spend time with the father during school terms as follows:
(a)From Friday after school until Monday when school starts on each alternate weekend;
(b)In the intervening week, from Wednesday after school until Thursday when school starts; and
(c)Such other time as the parents agree.
That the children spend time with the father during school holiday periods as follows:
(a)For one half of each school holiday period and, in the absence of agreement, the second half;
(b)From 6 pm on Christmas Eve until 11 am Christmas Day in even numbered years;
(c)From 9 am on 31 December until 10 am on 1 January in odd numbered years; and
(d)From 5 pm on Good Friday until 10 am on Easter Sunday in odd numbered years.
That the children spend time with the father:
(a)From 9 am until 6 pm on Father’s Day; and
(b)For three hours on each child’s birthday and on the father’s birthday.
That the operation of Orders 3 and 4 is suspended on the weekend of Mother’s Day and…

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 Adamo & Vinci (No 2)

Details

AGLC: Adamo & Vinci (No 2) [2020] FamCA 873
Case: [2020] FamCA 873
Decision Date: 16 October 2020

CaseChat Overview and Summary

This case concerned parenting and property disputes between Mr Adamo and Ms Vinci. The parenting dispute involved ongoing parental conflict, with the children spending time with the father on an ad hoc basis and seeking more regular contact. The father alleged parental alienation, while also having directed abusive language towards the mother. One child suffered from an illness. The property dispute involved the division of assets after a six-year de facto relationship post-separation.

The court was required to determine the parenting arrangements that were in the best interests of the children, considering the allegations of parental alienation and the father's past conduct. In relation to property, the court needed to assess the contributions of each party, both during the marriage and post-separation, to determine a just and equitable division of the marital pool.

Rees J ordered that the parents have equal shared parental responsibility for the children, with the children to live with the mother. The father was granted significant, but not equal, time with the children during school terms and holidays, with specific provisions for weekends, mid-week contact, and holiday periods, including Christmas and Easter. The court also made orders regarding communication, travel, and the prevention of denigration of either parent. In the property division, the court ordered the wife to pay the husband $402,000 within six months, reflecting a 70/30 split in favour of the wife, with a ten per cent adjustment for her future needs. Further orders addressed the division of a superannuation interest and the discontinuance of other proceedings.

Orders

Orders of the court

IT IS ORDERED

PARENTING

That the parents have equal shared parental responsibility for the children X born … 2006 and Y born … 2009 (“the children”).

That the children live with the mother.

That the children spend time with the father during school terms as follows:

(a) From Friday after school until Monday when school starts on each alternate weekend;

(b) In the intervening week, from Wednesday after school until Thursday when school starts; and

That the children spend time with the father during school holiday periods as follows:

(a) For one half of each school holiday period and, in the absence of agreement, the second half;

(b) From 6 pm on Christmas Eve until 11 am Christmas Day in even numbered years;

(d) From 5 pm on Good Friday until 10 am on Easter Sunday in odd numbered years.

That the children spend time with the father:

(a) From 9 am until 6 pm on Father’s Day; and

(b) For three hours on each child’s birthday and on the father’s birthday.

That the operation of Orders 3 and 4 is suspended on the weekend of Mother’s Day and on the mother’s birthday.

That in the event that the father does not intend to spend time with the children, or either of them, on any occasion provided by these Orders, he shall notify the mother in writing by email or text giving reasons and the mother is permitted to allow the children to read the email or text.

That the father have telephone or FaceTime contact with the children at any reasonable time.

That for the purpose of any changeover that cannot take place at the school, the mother shall deliver the children at the start of the period and the father shall return the children at the end of the period.

10.

That each parent is restrained from denigrating the other or members of the other’s family in the presence or hearing of the children.

11.

That each parent do all things to ensure that the children have current passports from time to time, such passports to be held by the mother.

12.

That in the event that a parent proposes that the children or one of them travels overseas, he or she shall provide to the other parent, not less than 14 days before the proposed departure date:

(a) An itinerary;

(b) Copies of the children’s tickets;

(d) Copies of any relevant visas;

(e) Evidence of relevant vaccinations; and

(f) Telephone contact details.

13.

That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

PROPERTY

14.

That within six months of the date of these Orders, the wife pay to the husband the sum of $402,000, less any sum due to the wife by way of costs ordered to be paid and the husband’s half share of the costs of Dr C which have been paid by the wife.

15.

That in the event that the wife has not paid the whole of the sum in Order 14 by the due date, she shall do all things required to sell the property at D Street, Suburb E in the state of NSW being the land comprised in Folio Identifier … and to pay the proceeds of sale, in the following order and priority:

(a) To discharge any registered mortgage;

(b) In payment of selling costs and agent’s commission;

(c) To pay to the husband the sum of $402,000, or such amount as remains unpaid, together with interest calculated from the due date of payment in Order 14 until the date of payment at the interest rate prescribed by the Family Law Rules, less any sum due to the wife by way of costs ordered to be paid and the husband’s half share of the costs of Dr C which have been paid by the wife.

16.

That from the sum received by the husband in accordance with Order 14 or 15 he shall pay one half of the costs of the Independent Children’s Lawyer in the sum of $5,681.50.

17.

That the wife pay one half of the costs of the Independent Children’s Lawyer in the sum of $5,681.50.

18.

That in accordance with paragraph 90MT(1)(b) of the Family Law Act 1975 (Cth):

(a) Mr Adamo is entitled to be paid the specified percentage of each splittable payment made out of Ms Vinci’s interest in the Super Fund 1; and

(b) Ms Vinci’s entitlement to payments out of her interest in the Super Fund 1, and the entitlement of any other person to splittable payments out of that interest, are correspondingly reduced by force of clause 18(a) of these Orders; and

19.

That the trustee of the Super Fund 1 shall do all such acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, the entitlement created for Mr Adamo by clause 18 of these Orders; and

(b) Pay the entitlement to Mr Adamo whenever a splittable payment becomes payable out of Ms Vinci’s interest in the Super Fund 1.

20.

That Orders 18 and 19 have effect from the operative time and the operative time for these Orders is one month from the date of these Orders.

21.

That Orders 18, 19 and 20 bind the trustees of the Super Fund 1.

22.

That the husband discontinue proceedings … against the wife in the District Court of NSW.

23.

That the wife make available for collection by the husband, at his expense, the following items:

(a) His bike and sporting equipment;

(b) The small statue of Caesar Augustus; and

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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