FAMILY COURT OF AUSTRALIA
| AMBLER & AMBLER | [2019] FamCA 870 |
| FAMILY LAW – CHILDREN – Parental responsibility –father having sole parental responsibility for children since 2011 – mother having time – mother seeking an order for equal shared parental responsibility and an increase in time – whether an order for the mother to have equal shared parental responsibility and an increase in time in children’s best interests – held, not. FAMILY LAW – PROPERTY – Modest property to be divided – short marriage – two children – majority of financial and non-financial direct and indirect contributions by husband – assets include real and personal property – little evidence adduced in relation to items of property – division of property on the basis of 61.5% to husband 38.5% to wife. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAC, 79, 102NA Transfer of Land Act 1958 (Vic) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Adams v Randall (2011) 46 Fam LR 453 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 Babcock & Waddell [2019] FamCAFC 129 Bevan & Bevan (2013) 49 Fam LR 387 Blanding v Blanding (2016) 55 Fam LR 218 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Champness & Hanson [2009] FamCAFC 96 Coghlan v Cumberland [1898] 1 Ch 704 Collu v Rinaldo [2010] FamCAFC 53 Commissioner of State Revenue v Kimiora (2016) 309 FLR 277 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Dearman v Dearman (1908) 7 CLR 549 Deutsch v Rodkin & Ors (No 2) [2012] VSC 543 Devriesv Australian National Railways Commission (1993) 177 CLR 472 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Elmi & Munro [2019] FamCAFC 138 Fox v Percy (2003) 214 CLR 118 G & C [2006] FamCA 994 G & G [1985] FLR 894 Galea v Galea (1990) 19 NSWLR 263 Garrety v Steyn [2019] FamCAFC 124 GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337 (QB) Godfrey & Sanders [2007] FamCA 102 Granada Theatres Ltd v Freehold Investments (Leytonstone) Ltd [1958] 1 WLR 845 Holland v Holland (2017) 57 Fam LR 84 Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269 In the Marriage Mallet (1984) 156 CLR 605 In the Marriage of Ahmad (1994) 18 Fam LR 514 In the Marriage of Bennett (1990) 14 Fam LR 397 In the Marriage of Browne & Green (1999) 25 Fam LR 482 In the Marriage of Clauson (1995) 18 Fam LR 693 In the Marriage of Coghlan (2005) 33 Fam LR 414 In the Marriage of Cordell (1977) 3 Fam LR 11,588 In the Marriage of Dench (1978) 6 Fam LR 105 In the Marriage of Ferraro (1992) 16 Fam LR 1 In the Marriage of Figgins (2002) 29 Fam LR 544 In the Marriage of Fisher (1990) 13 Fam LR 806 In the Marriage of Georgeson (1995) 19 Fam LR 302 In the… |
Continue reading Ambler & Ambler
Sign in free to access the full text
- AGLC
- Ambler & Ambler [2019] FamCA 870
- Case
- [2019] FamCA 870
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether granting the mother equal shared parental responsibility and increasing her time with the children would be in the children's best interests. Additionally, the court had to determine an appropriate division of the parties' property, considering their direct and indirect contributions.
In relation to parenting, the court found that it was not in the children's best interests to order equal shared parental responsibility or to significantly increase the mother's time. The court ordered that the father retain sole parental responsibility and that the children live with him. The orders detailed specific times for the children to spend with and communicate with the mother, including during school terms, holidays, and on specific occasions. The court also made detailed provisions regarding the exchange of information about the children's health and education, and prohibited denigration of the parties. The court expressly prohibited the mother from taking the children to most health professionals, except in a bona fide medical emergency. Regarding property, the court divided the assets, including real and personal property, on the basis of 61.5% to the husband and 38.5% to the wife, taking into account the majority of financial and non-financial contributions made by the husband. The orders specified which assets each party would retain, including various properties, vehicles, and bank accounts, and directed the husband to remove a caveat and ensure the wife's vehicle was roadworthy.
Orders
Orders of the court
Order amended pursuant to sub-rule 17.02(1)(h),(g) of the Family Law Rules (2004)
Parenting
1.
The father have sole parental responsibility of B born … 2010 and C born … 2015 (“the children”).
2.
The children live with the father.
3.
The children spend time and communicate with the mother as follows –
(a) during school terms each Wednesday from the conclusion of school (or 3:30pm if a non-school day), until 5pm Saturday;
(b) for three consecutive nights each week during each of the school term and long summer holidays at times to be agreed in writing between the parties, with any such times (or agreed extension of times) not to be discussed with the children prior to agreement being reach and confirmed in writing, and failing agreement from 9am Saturday to 5pm Tuesday (and on a fortnightly basis at Christmas);
(c) in the event that Mother’s Day is not a day that the wife would normally spend time with the children pursuant to these orders, then from 4pm on the eve of Mother’s Day until 4pm Mother’s Day;
(d) from 4pm Christmas Day until 4pm Boxing Day in each year;
(e) by telephone, Skype, Facetime or other electronic mode of communication between 6:30pm and 7pm on Tuesday and alternate Sunday and on each of the children’s birthday and on each of the children’s name days;
(f) by letters and/or cards on each of the children’s birthdays and on each of the children’s name days; and
(g) such further and other times as may be agreed between the parties in writing.
4.
The times set out in paragraph 3 herein be suspended as follows –
(a) from 4pm on the eve of Father’s Day until 4pm on Father’s Day;
(b) from 4pm on Christmas Eve until 4pm on Christmas Day in each year;
(c) for a period of two weeks during the long summer holidays, at times to be agreed in writing, and in default of agreement from 1 January until 14 January; and
(d) on such further and other times as may be agreed between the parties in writing.
5.
The father is at liberty to communicate with the children, whilst they are in the care of the mother on Saturdays between 6:30pm and 7pm by telephone, Facetime, Skype or other electronic mode of communication with the mother to facilitate such communications.
6.
Changeovers are to occur at D School at E Street, Suburb F on school days or at the commencement of time and at the conclusion of time at McDonalds Restaurant G Street, Suburb H, or such other venue as agreed in writing from time to time.
7.
The wife is authorised to receive information from the children’s kindergarten and schools as is normally provided to parents such as newsletters, photo order forms and reports (at her cost, if any) and subject to any direction from the relevant kindergarten/school, the parents be permitted to attend the children’s sports days, concerts and relevant events organised by the kindergarten/school that parents normally attend.
8.
The father and mother forthwith advise the other in writing and keep the other advised in writing as to –
(a) the name and address of any health professional seeing or treating the children or either of them;
(b) except in an emergency, or in the case of the need for urgent treatment, advise the other in advance in writing of any initial medical appointments for the children (as distinct from subsequent appointments) and the purpose of such initial appointments;
(c) authorise and direct the children’s school and nay and all health professionals seeing/treating the children or either of them, to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time, and each party is at liberty to attend upon health professional and educators (electronically if necessary).
9.
The father and mother advise the other as soon as practicable by email, text message, or in the case of an emergency by telephone, upon becoming aware of –
(a) any significant injury or illness affecting the children or either of them;
(b) any illness requiring the provision of any medication prescribed by a medical practitioner; and
(c) any hospital attendance by the children or either of them.
10.
The father and mother keep the other advised in writing as to any changes to their residential address, landline and mobile numbers, Skype and email address, and notify the other of any change to such details within 24 hours of such change.
11.
The father and mother, their servants and/or agents are retrained from –
(a) denigrating the other, and the parties’ family and friends, in the presence and/or hearing of the children or either of them, or allowing any other person to engage in such conduct;
(b) discussing family law matters in the presence and/or hearing of the children or either of them, or allowing any other person to engage in such conduct;
(c) using the internet, social media and other public forum to undertake the conduct prohibited in paragraph 11(a) and 11(b).
12.
The mother is expressly prohibited from taking the children to any medical practitioners, counsellor, psychologist, psychiatrist, and other health professionals including but not limited to dieticians, kinesiologists, chiropractors and osteopaths save an except for a bona fide medical emergency and the details of any such attendance must be provided to the father within 12 hours of any such attendance with all diagnosis and treatment details at which time the husband will assume care of any health issues affecting the children or either of them.
13.
The appointment of the independent children’s lawyer is hereby discharged.
Property
14.
The husband retain the following –
(a) J Street, Suburb K;
(b) L Street, Suburb M;
(c) N Street, Suburb O;
(d) P Street, Suburb Q;
(e) R Street, Suburb S;
(f) furniture and household effects of the home at L Street, Suburb M;
(g) the Motor Vehicle 1;
(h) shares in Company U; and
(i) cash-at-bank in the NAB offset account, account number … .
15.
The wife retain the following –
(a) V Street, Suburb Q;
(b) the Motor Vehicle 2; and
(c) cash-at-bank in the Westpac account, account number … .
16.
The husband and wife each retain their superannuation.
17.
The husband forthwith remove the caveat over the property at V Street, Suburb Q.
18.
Forthwith the husband at his expense do all thing necessary to render the pay for the insurance on the wife’ Motor Vehicle 2 so as to render it road worthy and obtain a roadworthy certificate.
19.
The parties do all acts and things and sign all necessary documents to effect the transfer of the Motor Vehicle 2 to the wife.
20.
The husband forthwith assign the proceeds of the insurance claim on the Motor Vehicle 2 to the wife.
Order amended pursuant to sub-rule 17.02(1)(h),(g) of the Family Law Rules (2004)
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.