Baranski & Baranski - [2010] FMCAfam 918

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARANSKI & BARANSKI & ANOR

[2010] FMCAfam 918

FAMILY LAW – Children aged 3 years and eight months – arrangements for care following final hearing – family violence – best interests – benefits of children having meaningful relationship with father balanced against need to protect children from family violence – paternal grandmother – benefits of children maintaining relations with extended paternal family.
FAMILY LAW – Property – assessment of contributions – wife’s parenting and homemaking contribution made more arduous by husband’s violent behaviour – s.75(2) factors – just and equitable.

Family Law Act 1975, ss.60B; 60CC; 61DA; 65DAA; 68LA; 7592); 79(4)
Family Law (Superannuation) Regulations 2001

Kennon & Kennon (1997) FLC 92-757
Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335;
Clauson v Clauson (1995) FLC 92-595
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Pierce & Pierce (1999) FLC 92-844
Kucera & Kucera [2009] FMCAfam 1032
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635
Re L (Contact: Domestic Violence) [2000] 2 FLR 334
JG & BG (1994) 18 Fam LR 255
In the Marriage of Patsalou (1994) 18 Fam LR 426
In the Marriage of DJM & JLM (1998) 23 Fam LR 396
AJO v GRO (2005) 33 FamLR 134
Blanch v Blanch & Crawford (1999) FLC 92-837
T & N (2003) FLC 93-172
A v A (1998) FLC 92-800
B & B (1993) FLC 92-357
W & W [Abuse allegations: unacceptable risk] [2005] Fam CA 892
Re W (2004) FLC 93-192
Ferraro & Ferraro (1992) 16 Fam LR 1
Pierce & Pierce (1999) FLC 92-844

Applicant:

MR BARANSKI

First Respondent:

MS S BARANSKI

Second Respondent:

MS V BARANSKI

File Number:

ADC 2182 of 2008

Judgment of:

Brown FM

Hearing dates:

10 & 11 March, 3 & 4 June 2010

Date of Last Submission:

10 June 2010

Delivered at:

Adelaide

Delivered on:

1 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Treadrea

Solicitors for the Applicant:

Fittock Barristers & Solicitors

Counsel for the First Respondent:

Ms Dickson

Solicitors for the First Respondent:

Ann Josephson

Counsel for the Second Respondent:

Ms Milen

Solicitors for the Second Respondent:

Jo-Anne N Milen & Associates

Counsel for the Independent Children’s Lawyer:

Ms Tinning

Solicitors for the Independent Children’s Lawyer

Legal Services Commission

ORDERS

IT IS ORDERED BY CONSENT

The children of the relationship [X] and [Y] (hereinafter referred to as “the children”) both born [in] 2006 live with the wife who shall have sole parental responsibility for them.
The wife be at liberty to relocate the residence of the children from the State of South Australia to the State of Victoria at the time of her choosing.

IT IS FURTHER ORDERED

The husband be restrained and an injunction be granted restraining the husband from:
(a)Approaching or coming within 200 metres of the wife’s residence or place of…

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 Baranski & Baranski

Details

AGLC: Baranski & Baranski [2010] FMCAfam 918
Case: [2010] FMCAfam 918
Decision Date: 1 September 2010

CaseChat Overview and Summary

In the case of Baranski & Baranski, the court addressed issues related to parental responsibility, relocation, contact, and property settlement following the separation of the parties. The children of the relationship, both born in 2006, were found to live with the wife, who was granted sole parental responsibility. The court granted the wife the liberty to relocate the children from South Australia to Victoria, with specific orders regarding the father's and paternal grandmother's contact with the children and the wife. The father was restrained from approaching or contacting the wife or the children, except under certain conditions. The paternal grandmother was granted specific visitation rights, with conditions to ensure the children's safety and well-being. The court also addressed the division of matrimonial property, with the husband ordered to pay the wife $134,000 within 60 days and transfer his interest in the former matrimonial home. The wife retained specific personal items and the husband retained his personal belongings and superannuation entitlements, subject to certain conditions.

The legal issues before the court included determining the appropriate arrangements for the children's care and contact with both parents and the paternal grandmother, as well as the division of matrimonial property. The court considered the best interests of the children in making its orders and balanced the competing interests of the parties. The court also had to determine the appropriate division of the parties' assets and liabilities, including the allocation of superannuation interests. The court's orders reflect a detailed and considered approach to resolving these complex issues, with specific provisions to protect the children's welfare and ensure a fair division of property between the parties.

Orders

Orders of the court

IT IS ORDERED BY CONSENT

The children of the relationship [X] and [Y] (hereinafter referred to as “the children”) both born [in] 2006 live with the wife who shall have sole parental responsibility for them.

The wife be at liberty to relocate the residence of the children from the State of South Australia to the State of Victoria at the time of her choosing.

IT IS FURTHER ORDERED

The husband be restrained and an injunction be granted restraining the husband from:

(a) Approaching or coming within 200 metres of the wife’s residence or place of employment;

(b) Approaching or contacting the wife in any way;

(c) Approaching, communicating or contacting or permitting any person to approach or communicate or contact either with the wife or any of the children except in accordance with the provisions of order 14 hereof.

The paternal grandmother spend time with the children as follows:

(a) On the last weekend of each calendar month for a period of three months from the date of these orders:

(i) on Saturday between the hours of 10am and 1pm; and

(ii) on Sunday between the hours of 9am and 12midday;

(b) thereafter on the last weekend in each calendar month for a further period of three months:

(i) on Saturday between the hours of 10am and 5pm; and

(ii) on Sunday between the hours of 9am and 12midday;

(c) thereafter on the last weekend of each calendar month up until the commencement of school term I in 2011, on Saturday commencing at 10am and concluding at 12midday on Sunday;

(d) as and from the commencement of school term I in 2012:

(i) during school terms on the last weekend of each month from 5pm Friday until 5pm Sunday;

(ii) during the April 2012 school holidays for a period of three days at times to be arranged between the paternal grandmother and the mother;

(iii) as and from the July 2012 school holidays, during each of the April, July and September/October school holidays for a period of four days at times to be arranged between the paternal grandmother and the mother;

(iv) during the 2012/2013 Christmas school holidays over a seven day period, with the children to spend the first four consecutive nights of such period in the care of the paternal grandmother and the last two consecutive nights of such period in the care of the paternal grandmother with the children to be returned to the mother for the single overnight period between 5pm on that night and 10am the following morning;

(v) as and from the 2013/2014 Christmas school holidays, for one week during each such holiday period at times to be agreed between the mother and paternal grandmother.

The first two such occasions of time the children spend with the paternal grandmother pursuant to paragraphs 4(a)(i) and 4(a)(ii) hereof do occur in the presence of the mother.

The third such occasion that the children spend time with the paternal grandmother pursuant to paragraphs 4(a)(i) and 4(a)(ii) hereof occur in the presence of the mother for the first thirty minutes of each such period.

On each such occasion that the children spent time with the paternal grandmother pursuant to paragraph 4(b)(i) hereof occur in the presence of the mother for the first thirty minutes of each such period.

For the purposes of the paternal grandmother spending time with the children the paternal grandmother do collect and deliver the children to and from the mother’s residence in the Geelong area.

In the event that the children become distressed during any period of time they spend with the paternal grandmother, the paternal grandmother shall facilitate them telephoning the mother with a view to the mother providing some reassurance and in the event that same is unsuccessful, the paternal grandmother do cause the children to be forthwith returned to the mother.

10.

The paternal grandmother be at liberty to communicate with the children by telephone on one occasion each week and on the children’s birthdays, Christmas Day, Easter and other special occasions, with such calls to be made to the mother’s residence at times to be agreed between the paternal grandmother and the mother.

11.

The paternal grandmother and mother do keep the other informed at all times of that party’s residential address and contact telephone number.

12.

The mother and paternal grandmother do inform the other should any serious issue arise pertaining to the children’s health or welfare whilst in that party’s care.

13.

The paternal grandmother be restrained and an injunction be granted restraining her from:

(a) disclosing to the father or any other person the mother’s residential address or telephone number save and except as the mother may authorise in writing;

(b) permitting the children to have any contact with or communication with the father either directly or indirectly or allowing a third party to do so save and except in accordance with the within Order or as the mother may authorise in writing;

14.

That the paternal grandmother be at liberty to provide gifts to the children from the father on their birthdays and at Christmas together with a letter or card accompanying such gift provided such written communication is vetted by the paternal grandmother as to its appropriateness prior to it being delivered to the children.

15.

The paternal grandmother be at liberty to provide photographs of the children to the father.

16.

The paternal grandmother be at liberty to have the father’s sister Ms T and any of her (Ms T’s) children present during visits.

17.

The mother do provide to the paternal grandmother any reports concerning the children’s development, school reports and the like upon condition that the paternal grandmother not provide same to the father save and except in accordance with Court Orders or as the mother may authorise in writing.

18.

The father’s application and the paternal grandmother’s application to spend time and communicate with the children are otherwise dismissed.

IN FULL AND FINAL SETTLEMENT OF ALL CLAIMS FOR MATRIMONAL PROPERTY:

19.

Within sixty (60) days of the date of these orders the husband pay to the wife the sum of $134,000.00.

20.

Contemporaneously with the payment referred to in order 19 hereof the wife transfer to the husband the whole of her right, title and interest in respect of the property situate at and known as Property G in the State of South Australia (hereinafter referred to as “the former matrimonial home”).

21.

The husband indemnify the wife forever in respect of the mortgage secured against the property in favour of the National Australia Bank and keep the wife indemnified in respect of all other outgoings and liabilities in respect of the property.

22.

The wife retain as her sole property without any claim from the husband:

(a) The Club Sport motor vehicle currently in her possession;

(b) Her furniture and effects currently in her possession;

(d) The partial property settlement in the sum of $5,264.50 being the husband’s taxation refund for the 2009 financial year which the husband has forwarded to the wife;

(e) The ING insurance policy standing in the wife’s name.

23.

The husband retain as his sole property without any claim from the wife:

(a) His furniture and effects;

(b) The Rio Tinto shares standing in his name;

(d) His superannuation entitlements standing in his name; subject to the provisions of orders 25 to 28 hereof.

24.

In the event that the husband is unable to comply with order 19 hereof the parties execute all necessary documents and do all things necessary to place the former matrimonial home on the market for a price of not less than $320,000.00 or such other sum as the parties mutually agree with the proceeds of sale to be paid as follows:

(a) Firstly, to pay the costs, commissions and expenses in relation to the said sale;

(b) Secondly, to discharge the mortgage on the property;

(c) Thirdly, to distribute the balance of the proceeds of sale so that the wife receives 70% of the parties’ net assets and the husband 30% of the parties’ net assets, taking into account the items of property to be retained by each party as set out in these reasons for judgment.

25.

Pursuant to section 90MT(4) of the Family Law Act 1975 a base amount of $22,250.00 be allocated to the wife in respect of the husband’s superannuation interest in the [C] Superannuation Fund ([C]) and that pursuant to section 90MT(1)(a) whenever a splittable payment becomes payable in respect of that interest, the wife is entitled to be paid the amount to be calculated in accordance with the Family Law (Superannuation) Regulations 2001 in respect of that base amount and there is a corresponding reduction in the entitlement of the husband.

26.

The trustee of the [C] Superannuation Fund, the husband and the wife, in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all such documents as may be necessary to give effect to order 25 hereof.

27.

Order 25 of these orders shall have effect from the operative time which shall be 1 October 2010.

28.

The solicitor for the wife serve a copy of these orders on the [C] Superannuation Fund and the trustee and the parties are given liberty to relist the matter on giving seven (7) days written notice if the trustee is unable to comply with the orders herein pertaining to it.

29.

Within thirty (30) days of the date of these orders each pay $225.00 to [W] being the costs incurred in respect of the valuation of the former matrimonial home.

30.

The appointment of the independent children’s lawyer is discharged.

31.

All applications be otherwise 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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