BABRAY & BABRAY

Case [2019] FCCA 3514


FEDERAL CIRCUIT COURT OF AUSTRALIA

BABRAY & BABRAY [2019] FCCA 3514

Catchwords:

FAMILY LAW – Property application – whether s 79(2) satisfied – Stanford & Stanford – where applicant engaged in property settlement proceedings with former de facto partner at time cohabitation with respondent commenced – where property settlement with former de facto partner resulted in applicant acquiring property, subject to mortgage, and assuming obligation to pay monies – where property so acquired sold – where applicant extends mortgage and borrows monies from respondent’s parents so as to discharge obligation to pay former de facto partner monies due under settlement – where applicant applies net equity with further borrowings from respondent’s parents to purchase motor vehicle – where respondent brings substantial property at commencement of relationship – consideration of contributions during and post separation – whether just and equitable to make order under s 79 – applicable principles – whether adopting alternative approach any order should be made adjusting property interests – application dismissed.

FAMILY LAW – Parenting application – where parties agreed substantially all final parenting orders – where parties in contest over changeover and who may attend to collect or deliver the child – where child spends alternate on weekends with father from Friday night to Sunday – where applicant agrees to undertake all driving throughout football season but seeks that respondent except responsibility for 25% of annual driving – orders for changeover made.

Legislation:

Evidence Act 1995 (Cth), ss.140, 144
Family Law Act 1975 (Cth), ss.4, 4AA, 43, 60CA, 60CC, 65D, 75, 79, 81

Cases cited:

Beklar & Beklar [2013] FamCA 327
Bevan & Bevan (2013) FLC 93-545
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Briginshaw v Briginshaw (1938) 60 CLR 336
Chapman & Chapman (2014) FLC 93-592
Chancellor & McCoy [2016] FamCAFC 256
Clauson & Clauson (1995) FLC 92-595
Dickons & Dickons (2012) 50 Fam LR 244
Fielding & Nicol [2014] FCWA 77
Hepworth v Hepworth (1963) 110 CLR 309
Hickey & Hickey; the Attorney General for the Commonwealth of Australia (2003) FLC 93-143
Jabour & Jabour [2019] FamCAFC 78
Johnson v Page (2007) FLC 93-344
Kennon v Spry (2008) 238 CLR 366
Kuglioski v Metrobus (2004) 220 CLR 363
Leach v The Queen (2007) 230 CLR 1

Mallet v Mallet (1984) 156 CLR 605

Morgan and Miles (2007) FLC 93-343
Norbis v Norbis (1986) 161 CLR 513
Oswald & Karrington [2016] FamCAFC 152
Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Scott & Danton [2014] FamCAFC 203
Stanford & Stanford (2012) 247 CLR 108
Vale v Sutherland (2009) 237 CLR 638
Wallis & Manning [2017] FamCAFC 14
Whent & Marband [2017] FCCA 1873
Wirth v Wirth (1956) 98 CLR 228

Applicant: MR BABRAY
Respondent: MS BABRAY
File Number: MLC 5055 of 2017
Judgment of: Judge A Kelly
Hearing date: 26 March 2019
Date of Last Submission: 30 April 2019
Delivered at: Melbourne
Delivered on: 9 December…

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AGLC
BABRAY & BABRAY [2019] FCCA 3514
Case
[2019] FCCA 3514
Decision Date

CaseChat Overview and Summary

In this matter before Judge A Kelly, the parties, referred to as the applicant and respondent, brought applications concerning both property settlement and parenting arrangements for their child, X. The property dispute arose from the applicant's financial dealings during and after the parties' cohabitation, particularly in relation to a prior property settlement with a former de facto partner and subsequent borrowings from the respondent's parents. The parenting dispute centred on the practicalities of child changeovers, specifically who would be responsible for transportation during different periods of the year and who could attend to these changeovers.

The court was required to determine whether it was just and equitable to make an order adjusting the property interests of the parties under section 79 of the Family Law Act 1975 (Cth), considering the applicant's contributions and financial activities. In relation to parenting, the court needed to make orders regarding the arrangements for the child's changeovers, addressing the specific concerns raised by the parties regarding driving responsibilities and authorised attendees.

On the property application, the court applied the principles established in *Stanford & Stanford*, considering the applicant's contributions during and after the relationship, and whether any adjustment to property interests would be just and equitable. The court found that the applicant's financial activities, including the acquisition and sale of property and subsequent borrowings, did not warrant an adjustment of property interests under section 79. Consequently, the application for an adjustment of property interests was dismissed. For the parenting application, the court made orders varying existing arrangements, specifying that the applicant father would be responsible for collecting and delivering the child during the Australian Rules football season, while the respondent mother would be responsible for deliveries on alternate Friday evenings for the remainder of the year. The court also authorised the applicant's eldest child to undertake changeovers upon reaching the age of 22.

Orders

Orders of the court

1.

Paragraphs (4), (8) and (9) of the Order made on 26 March 2019, by consent, be varied in accordance with paragraphs (2)-(3) of this Order.

2.

Save as otherwise as may be agreed in writing by the parties, for the purposes of changeover, during:

(a) the period of the Australian Rules football season (as determined by the fixture of the Australian Football League and excluding all finals), the applicant father collect and deliver the child, X born on … 2013 (Child) at the commencement and conclusion of his time to be spent with the applicant; and

(b) the remainder of each year, on each Friday evening on alternate weekends the respondent mother deliver the Child to the applicant’s home at the commencement of his spend time.

3.

In addition to the persons who are authorised by paragraph (9) of the Order made on 26 March 2019, the applicant’s eldest child be authorised to undertake changeovers upon her attaining the age of 22 years.

4.

The application for an adjustment of property interests be dismissed.

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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