ANMAR & DEMERLY - [2020] FCCA 2645

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANMAR & DEMERLY

[2020] FCCA 2645

Catchwords:
FAMILY LAW – Children – parents agree on equal time regime – four discrete issues remain – mother Muslim – father Christian – children raised as Christians – the likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from their parents – the culture and traditions of the children and the children’s parents – the parents’ co-parenting relationship – extra-curricular participation.

PROPERTY – balance sheet issues - contributions assessed to be equal – disparity in income earning capacity – 60%/40% adjustment to wife – wife to retain home.

DEPARTURE ORDER – departure order made as sought by wife.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 62G, 72, 79, 75(2), 81

Child Support (Assessment) Act 1989 (Cth), ss.3, 116, 117(1), 117(2), 117(4), 117(5), 117(6), 117(7), 117(7A), 117(8), 123, 124

Cases cited:

Baghti & Baghti & Ors [2015] FamCAFC 71

Goode & Goode [2006] FLC 93-286

MRR v GR (2010) FLC 93-424

U v U (2002) 211 CLR 238

AMS v AIF; AIF v AMS [1999] FLC 92-852

Stanford & Stanford (2012) 247 CLR 108

Stephens & Stephens & Ors [2007] FamCA 680

Ashton & Ashton (1986) FLC 91-777

NHC & RCH [2004] FamCA 633

Petruski & Balewa (2013) 49 FamLR 116

Beklar & Beklar [2013] FamCA 327

Field & Smith (2015) FLC 93-638

Carmel-Fevia & Fevia (No 3) [2012] FamCA 631

Gyselman and Gyselman (1992) FLC 92-279

Applicant:

MS ANMAR

Respondent:

MR DEMERLY

File Number:

SYC 4969 of 2017

Judgment of:

Judge Purdon-Sully

Hearing dates:

20, 21, 22, 23 & 24 May 2019

Date of Last Submission:

5 July 2019

Delivered at:

Brisbane

Delivered on:

25 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr Fowler

Solicitors for the Applicant:

Broun Abrahams Burreket

Counsel for the Respondent:

Mr Dura

Solicitors for the Respondent:

Barry Nilsson Lawyers

ORDERS

PARENTING

Special Occasions

That the children X born in 2012 and Y born in 2014 (the children) live with the father:
(a)From 2pm Christmas Day until 5pm Boxing Day in 2019 and each alternate year thereafter;
(b)From 2pm Christmas Eve until 2.00pm Christmas Day in 2020 and each alternate year thereafter;
(c)From 2pm Easter Sunday until 5pm Easter Monday in 2019 and each alternate year thereafter;
(d)From 3pm on Thursday before Easter until 2pm Easter Sunday in 2020 and each alternate year thereafter.
That the children live with the mother:
(a)From 2pm Christmas Eve until 2.00pm Christmas Day in 2019 and each alternate year thereafter;
(b)From 2pm Christmas Day until 5pm Boxing Day in 2020 and each alternate year thereafter;
(c)From 3pm on Thursday before Easter until 2pm Easter Sunday in 2019 and each alternate year thereafter;
(d)From 2pm Easter Sunday until 5pm Easter Monday in 2020 and each alternate year thereafter.

Extra-Curricular Activities

In the absence of the parents’ agreement in writing about the enrolment of either child in an extracurricular activity, each parent may enrol each child…

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 ANMAR & DEMERLY

Details

AGLC: ANMAR & DEMERLY [2020] FCCA 2645
Case: [2020] FCCA 2645
Decision Date: 25 September 2020

CaseChat Overview and Summary

In this matter before Purdon-Sully J, the court was asked to resolve four outstanding issues between the parents concerning their children, X and Y, and to make orders regarding the division of their property. The parenting dispute involved the children's religious upbringing, with the mother being Muslim and the father Christian, and the children having been raised as Christians. The court also considered the likely impact of any changes on the children, their cultural backgrounds, the parents' co-parenting relationship, and their participation in extra-curricular activities. In relation to property, the court was required to address balance sheet issues, having assessed the parties' contributions as equal, but noting a disparity in their income-earning capacities.

The court was required to determine the specific arrangements for the children's time with each parent, particularly around special occasions like Christmas and Easter, and to make orders regarding their involvement in extra-curricular activities. Furthermore, the court had to decide on the division of the parties' assets and liabilities, including various companies, superannuation entitlements, a share portfolio, bank accounts, jewellery, personal possessions, and a property. A significant issue was the wife's application for a departure order concerning child support.

In its reasoning, the court made detailed orders for the division of time between the parents for Christmas and Easter, aiming to provide a structured approach to these special occasions. Regarding extra-curricular activities, the court allowed each parent to enrol a child in one activity annually in the absence of agreement, with a specific restriction on the father regarding soccer. In the property division, the court ordered an adjustment of 60% to the wife and 40% to the husband, reflecting the disparity in their income-earning capacities, and ordered that the wife retain the family home. The court also made a departure order regarding child support, reducing the administrative assessment to $75 per week per child, with provision for annual indexation, and further stipulated that the husband would be responsible for a significant portion of the children's educational and medical expenses.

The court made orders reflecting these determinations, including the specific arrangements for the children's time with each parent, the division of property with the wife retaining the home and receiving a payment from the husband, and a departure from the standard child support assessment with additional non-periodic child support obligations for the husband. The court also appointed the Registrar to execute necessary documents if either party failed to do so.

Orders

Orders of the court

PARENTING

Special Occasions

That the children X born in 2012 and Y born in 2014 (the children) live with the father:

(a) From 2pm Christmas Day until 5pm Boxing Day in 2019 and each alternate year thereafter;

(b) From 2pm Christmas Eve until 2.00pm Christmas Day in 2020 and each alternate year thereafter;

(d) From 3pm on Thursday before Easter until 2pm Easter Sunday in 2020 and each alternate year thereafter.

That the children live with the mother:

(a) From 2pm Christmas Eve until 2.00pm Christmas Day in 2019 and each alternate year thereafter;

(b) From 2pm Christmas Day until 5pm Boxing Day in 2020 and each alternate year thereafter;

(d) From 2pm Easter Sunday until 5pm Easter Monday in 2020 and each alternate year thereafter.

Extra-Curricular Activities

In the absence of the parents’ agreement in writing about the enrolment of either child in an extracurricular activity, each parent may enrol each child in one extracurricular activity each calendar year, providing the father will not enrol Y or X in soccer or any other extra-curricular activity in which Mr B is associated.

PROPERTY

That the Court make Orders as to the alteration of property and liabilities of the parties to effect the following.

That the husband retain to the exclusion of the wife all his right, title and interest in:-

(a) C Pty Ltd.

(b) D Pty Ltd.

(d) F Pty Ltd.

(e) His superannuation entitlements in F Pty Ltd Super Fund;

(f) His share portfolio.

(g) His jewellery and personal possessions.

(h) His bank accounts.

That the wife retain to the exclusion of the husband the property situated and known as G Street, Suburb H (the G Street, Suburb H property).

That within 56 days of the date of these Orders and simultaneously:

(a) The husband will vacate the G Street, Suburb H property;

(b) The wife will pay the husband $252,008;

(c) The parties will do all things and sign all documents necessary to cause the release of the husband’s personal guarantees provided by him to the ANZ Bank in relation to the mortgage secured against the G Street, Suburb H property.

The wife retain to the exclusion if the husband:

(a) Her Motor Vehicle 1;

(b) Her superannuation entitlements with J Super Fund;

(d) Her jewellery and personal possessions.

The parties will divide the contents of the G Street, Suburb H property by agreement and failing agreement by adopting A & B List Method. For the purpose of the preparation of the A & B List the husband will prepare same within 14 days of the date of these Orders and submit to the wife and the wife will select one of those lists submitted to her by the husband within 14 days thereafter.

CHILD SUPPORT DEPARTURE

10.

That pursuant to section 118 of the Child Support (Assessment) Act 1989 (Cth) there be a departure from the administrative assessment of child support payable by the husband to the wife such that the annual rate of child support for the children shall be calculated in the sum of $75 per week per child and:

(a) The child support to be paid pursuant to clause 10 of these Orders be varied on 1 January of each year (the review date) commencing 1 January 2020 to such sum as shall be determined by multiplying the child support being paid on the review date by the faction N/B where “B” is the Consumer Price Index for Sydney (All Groups) published by the Australian Bureau of Statistics (CPI) in respect of that quarter year ended on the day 12 months prior to the review date, namely 31 December and “N” is the CPI in respect of the quarter year ending on the day immediately preceding the review date;

11.

Pursuant to sections 123 and 124 of the Child Support (Assessment) Act 1989 (Cth), the husband shall provide child support to the wife for the benefit of the children (in addition to the amounts required to be paid pursuant to Order 10 by way of payment as and when they fall due:

(a) 100% of children’s compulsory tuition fees and levies;

(b) 100% of the children’s compulsory school uniform, books, information technology expenses and school requisites;

(d) 50% of the agreed extra-curricular activities expenses;

(e) 100% of the children’s private health insurance premiums as and when they fall due from time to time with the same or better level;

(f) 50% of children’s agreed or urgent medical expenses which are not otherwise paid by private health insurance and Medicare and which exceed $100 for any item.

12.

Pursuant to sections 123 and 124 of the Child Support (Assessment) Act 1989 (Cth), the wife pay, or cause to be paid, non-periodic child support as follows:

(a) 50% of the agreed extra-curricular activities expenses;

(b) 50% of the children’s agreed or urgent medical expenses which are not otherwise paid by private health insurance and Medicare and which exceed $100 for any item.

Section 106A

13.

The husband and wife shall promptly do all acts and things and give all consents and execute all documents in writing necessary to give effect to these Orders.

14.

That in the event either party refuses or neglects to execute any deed or instrument necessary to give effect to all or any of these Orders made herein, the Registrar of the Court be appointed pursuant to section 106A to execute such deed or instrument in the name of the said party and do all things necessary to give validity and operation to the said deed or instrument.

15.

The Registrar is authorised to execute any such necessary deed or instrument upon being satisfied by affidavit of the neglect or fault, as the case may be, as occurred.

Costs

16.

That any application for costs shall be filed and served within 28 days of the date of these Orders with any response to filed and served 14 days thereafter.

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.