FAMILY COURT OF AUSTRALIA
| ALAM & SAYID AND ANOR | [2016] FamCA 580 |
| FAMILY LAW – CHILDREN - Interim – Where the parties agree to have equal shared parental responsibility – Where the parties agree that the children will spend time with the father on two weekends out of every three – Where there is a dispute as to whether the children’s time with the father should be extended – Where there is a dispute as to where the children should live – Where the husband submits that the children should live in the former matrimonial home with him if the mother does not want to reside there with the children –Where no weight is placed on the father’s concerns for the need to protect the children from physical or psychological harm whilst in the care of the mother in the context of an interim hearing – Where an interim ADVO has been made against the husband – Where the children have experienced significant upheaval in changes to their home and school – Where it is in the children’s best interests to live with the mother – Where the age of the children and travel time mitigate against extending the father’s time with the children. FAMILY LAW – PROPERTY – Interim – Where an order has been made against the husband in the Federal Court in favour of the Commissioner of Taxation in relation to a debt owing by the husband and a freezing order made in relation to the matrimonial home – Where the husband has lodged an objection but the outcome is unknown – Where the wife seeks the sale of the matrimonial home – Where the wife seeks the proceeds of sale be paid to her for legal costs and the balance be placed into a controlled monies account – Where the Commissioner of Taxation agrees to the sale but seeks the proceeds of sale be frozen – Where an amount of $3 million has been removed from Australia to Country A by the husband – Where the husband asserts that $1.5 million of the $3 million in Country A remains in the wife’s control – Where evidence is provided by the husband in the vaguest terms as to whether the money was transferred to Country A as a result of a commercial loan agreement – Where the husband submits that if a sale order is made now it would preclude him from arguing at final hearing that he should retain the matrimonial home – Where there is a risk that the debt on the matrimonial home will increase reducing the current equity in the property – Where there is a real possibility of a forced sale of the matrimonial home – Where it is necessary to do justice and order the sale of the matrimonial home – Where the Commissioner of Taxation is entitled to succeed against the wife and the proceeds of sale are to be placed in a controlled monies account – Where the Commissioner… |
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- AGLC
- Alam & Sayid [2016] FamCA 580
- Case
- [2016] FamCA 580
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children regarding their residence and time with each parent, balancing the father's desire for extended time against the children's need for stability and the impact of travel. Concurrently, the court had to address the urgent need to manage the matrimonial home and the significant tax debt, considering the risk of increased debt and potential forced sale, while also accounting for funds removed from Australia by the husband.
Watts J reasoned that it was in the children's best interests to live with the mother, citing the significant upheaval they had already experienced and the mitigating factors of their age and travel time against extending the father's time. Regarding the financial matters, the court found it necessary to order the sale of the matrimonial home to address the debt owed to the Commissioner of Taxation and to prevent further risk to the equity in the property. The court also noted the husband's vague assertions regarding funds transferred overseas.
The court ordered that the parents have equal shared parental responsibility, with the children to live with the wife. The father was granted specific time with the children, including two weekends out of every three, and additional time on certain weekdays and special occasions, with restrictions on travel during that time. The court also ordered the sale of the matrimonial home, with proceeds to be applied to agent commissions, conveyancing costs, the mortgage discharge, and rates, with the balance to be held in a controlled monies account. The Commissioner of Taxation was to be notified of any garnishment notices against a future purchaser of another property. Periodic spousal maintenance of $600 per week was also ordered.
Orders
Orders of the court
Pending further order
Parenting
1.
All previous interim parenting orders are discharged.
2.
The parents have equal shared parental responsibility for the children B born … 2010, C born … 2012 and D born … 2013 (“the children”).
3.
The children live with the wife.
4.
The children will spend time with the husband with the husband to collect and return the children:
4.1. For two weekends out of every three from 3.30pm or the end of school/preschool/daycare on Friday until 9am or the commencement of school/preschool/daycare on Monday (in the same cycle as under the previous orders);
4.2. For each third Monday (being the Monday after the weekend that the children are not with their father) from 3.30pm or the end of school/preschool/daycare until 7pm on the condition that the time the husband spends with the children does not involve them in any travel for a significant period during those 3 ½ hours;
4.3. On special occasions each year as follows:
4.3.1. From 9am on the day of the religious festival until 3pm three days later in odd numbered years;
4.3.2. From 9am on the ninth day of the religious festival until 5pm four days later in even numbered years;
4.3.3. On Father’s Day from 9am until 5pm should the children not otherwise be with their father on that day;
4.3.4. If the children are not otherwise with him, for a period of two hours on each of the children’s birthdays and the husband’s birthday if the children are not otherwise with their father, failing agreement to be from 3pm until 5pm;
4.3.5. For five hours on Christmas Day if the children are not otherwise with the husband, to be from 12pm until 5pm unless otherwise agreed
4.4. On other occasions as agreed between the parties.
5.
Notwithstanding other orders, the children will be with the wife (and the husband’s time with the children will be suspended if necessary) on special occasions each year as follows:
5.1. From 9am on the day of the religious festival until 3pm three days later in even numbered years;
5.2. From 9am on the ninth day of the religious festival until 5pm four days later in odd numbered years;
5.3. From 9am on Mother’s Day until 9am/the commencement of school on the following day should the children not otherwise be with their mother on that day;
5.4. For a period of two hours on each of the children’s birthdays and the wife’s birthday if the children are not otherwise with their mother, failing agreement to be from 3pm until 5pm;
5.5. For five hours on Christmas Day if the children are not otherwise with the wife, to be from 12pm until 5pm unless otherwise agreed;
5.6. On other occasions as agreed between the parties.
6.
The parents are each permitted to telephone to speak to the children between 5pm and 6pm on any day that the children are in the other parent’s care and the parent with whom the children are spending time will facilitate the children receiving that call.
7.
Within three months of the making of these orders, the parents shall enrol in and undertake a “Keeping Kids in Mind” or equivalent parenting after separation course approved by the Independent Children's Lawyer and shall provide the other parent and the Independent Children's Lawyer with evidence of their completion of such course.
8.
Within five months of the making of these orders, the parents shall enrol in and undertake a “Circle of Security” course and shall provide the other parent and the Independent Children's Lawyer with evidence of their completion of such course.
9.
The parents are forthwith to do all such things as are necessary to enrol the child B at E School and the wife is to ensure that from the commencement of term 3 2016, B attends school on all school days unless he is sick and the wife is to provide a copy of these orders to the school.
10.
Subsequent to complying with order 9, the parties are each restrained from changing B’s school without the written consent of the other parent or further order of this court.
11.
The parties are each restrained from changing the school/preschool/daycare attended by the children C and D without the written consent of the other parent or order of this court and the wife is to provide a copy of these orders to any school, preschool or daycare attended by the children C and D.
12.
Each parent is hereby authorised to communicate directly with any school, preschool or daycare attended by any of the children, to receive copies of all reports, newsletters and other documents provided to parents and to attend any events at the school, preschool or daycare to which parents are invited.
13.
The wife is to ensure that within four weeks of the date of these orders, she arranges for B to commence/recommence the following:
13.1. Fortnightly occupational therapy as recommenced by Ms F in her report dated April 2016; and
13.2. Speech therapy to address B’s speech “dysfluency” as recommended in the report of “Childthink” dated 5 April 2016.
The wife is to notify the husband and the Independent Children's Lawyer of the dates of B’s appointment and the name and contact details of the therapists from whom B will be receiving treatment, and authorise the therapists to release all information to the husband about B’s treatment and progress. The husband is to pay the costs of any therapy that the wife arranges for the child.
14.
The parents are each restrained from doing any of the following:
14.1. Denigrating, criticising or otherwise speaking negatively about the other parent or members of the other parent’s family in the presence or hearing of the children;
14.2. Discussing these proceedings or any of the allegations raised in evidence in these proceedings with or in the presence or hearing of the children;
14.3. Enrolling the children in any extracurricular activities that take place at times when the children will be in the care of the other parent without the prior written consent of the other parent;
14.4. Using any form of physical discipline upon the children.
15.
The parents are each to keep the other parent informed of their current residential address, mobile telephone number and email address at all times.
16.
Communication between the parties in relation to the care of the children is to occur by email or text message except in the case of an emergency and such communication is to be expressed in a polite and businesslike manner at all times.
17.
The parents are each to keep the other informed in a timely manner of any serious illness or injury suffered by any of the children while in their care, including any hospitalisation and is to provide the other parent with the name and contact details of any health care professional who has provided treatment to any of the children and authorise such professional to discuss the child’s health and treatment with the other parent.
18.
Each of the parents are restrained from presenting the child/ren to any professional whatsoever for the purpose of assessment unless both parents have provided written consent or otherwise by court order.
19.
The parents do all things necessary to ensure the Sydney Registry of the Family Court of Australia retain each of the children’s passports and the children shall not travel overseas (with or without the parents) without leave of the court.
20.
Pursuant to s 65DA(2) and s 62B 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 these particulars are included in these orders.
Financial
21.
Each party do all things and sign all necessary documents to vary, so far as it is necessary, any order made in the Federal Court proceedings, NSD 544 of 2015, so that orders 22 and 23 might be implemented.
22.
The husband and wife do all acts and things and sign all writings and documents necessary to forthwith list and cause the sale by public auction of the property at G Street, Suburb H (“the Suburb H property”) being the whole of the land in Folio Identifier … at a price to be agreed upon between the parties and failing agreement, at a price to be determined by the nominee of the President for the time being of the Australian Institute of Valuers on the following basis:
22.1. Pending completion of the sale of the property, the husband pay as and when they fall due:
22.1.1. All instalments of principal and interest in respect of the mortgage which the Commonwealth Bank of Australia holds in respect of the property;
22.1.2. All rates and taxes in relation to the property;
22.1.3. All premiums of insurance in relation to the property and contents therein.
23.
The proceeds of the sale of the property be paid in the following manner and priority:
23.1. Agents commission, costs and disbursements of the agent and/or auctioneer acting on the sale of the property;
23.2. Costs and disbursements of the conveyancer/lawyer acting on the sale of the property;
23.3. Monies owing to the Commonwealth Bank of Australia in order to effect a discharge of the mortgage that the Commonwealth Bank hold in respect of the property;
23.4. Adjustment of municipal and water rates;
23.5. The balance to be held in a controlled monies account in the names of the solicitors for the parties to these proceedings until further order of the court.
24.
The husband is to vacate the Suburb H property not later than two days prior to the date scheduled for the settlement of the sale of the Suburb H property.
25.
The parties have liberty to apply on 14 days’ notice in relation to the implementation of the orders relating to the Suburb H property.
26.
The husband pay to the wife by way of periodic spousal maintenance, the sum of $600 per week. The first payment to be within seven days.
27.
The Commissioner of Taxation is to give notice as soon as possible to the husband and wife about any garnishment notice made against any future purchaser of the property at I Street, Suburb J and the husband and wife are to be given liberty on 14 days’ notice to make an application in relation to whether or not those proceeds of sale should be frozen pending the outcome of these proceedings.
28.
The wife’s Amended Application in a Case filed 20 June 2016 be otherwise dismissed.
29.
The husband’s Amended Response filed 6 July 2016 be otherwise dismissed.
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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