Benjamin and Bardot - [2008] FamCA 1011

FAMILY COURT OF AUSTRALIA

BENJAMIN & BARDOT

[2008] FamCA 1011

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of child
FAMILY LAW – PROPERTY – Settlement in relation to marriage
FAMILY LAW – CHILD SUPPORT – Application for departure

Family Law Act 1975 (Cth)

Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006)
Child Support (Assessment) Act 1989 (Cth)
Family Law Rules (2004)

Goode and Goode (2006) FLC 93-277
B and B; Family Law Reform Act 1995 (1997) FLC 92-775
Mazorski v Albright (2007) 37 Fam LR 518
Jones v Dunkel (1959) 101 CLR 298
Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179

APPLICANT:

Mr Benjamin

RESPONDENT:

Ms Bardot

FILE NUMBER:

SYF

4244

2006

DATE DELIVERED:

26 November 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

14 May, 22 November 2007, 17 January, 6 August, 3, 4, & 5 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonnel

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton

SOLICITOR FOR THE RESPONDENT:

Gayle Meredith & Associates

Orders

Parenting

All previous parenting orders be discharged.
The Husband and the Wife have equal shared parental responsibility for the long term issues relating to the children, M born on … April 1999 and B born on … June 2001.
The children live with the Wife at all times they are not residing with the Husband in accordance with Order 5 hereof.
The children also live with the Wife:
4.1.from 3:00 pm on Christmas Day until 6:00 pm on Boxing Day in 2008 and each alternate year thereafter and from 6:00 pm on Christmas Eve until 3:00 pm on Christmas Day in 2009 and each alternate year thereafter;
4.2.from 12:00 noon on New Year’s Eve in 2008 until 6:00 pm on New Year’s Day and each alternate year thereafter;
4.3.from 6:00 pm on Easter Saturday until 6:00 pm on Easter Monday in 2009 and each alternate year thereafter and from 9:00 am on Good Friday until 6:00 pm on Easter Saturday in 2010 and each alternate year thereafter;
4.4.in the event that Mothers Day does not coincide with a period when the children are living with the Wife in accordance with these orders then from 9:00 am on Mothers Day until before school the following morning;
4.5.in the event the children are not living with the Wife in accordance with these orders on the children’s birthdays then from after school until 6:00 pm if it is a school day and from 1:00 pm to 5:00 pm if it is a weekend.
Subject to Orders 3 and 4 hereof, the children live with the Husband:
5.1.during the school term on alternate weekends from after school on Friday until before school on the following Monday, commencing the first weekend after school term commences;
5.2.in each other week during the school term from Wednesday at 6:00…

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 Benjamin and Bardot

Details

AGLC: Benjamin and Bardot [2008] FamCA 1011
Case: [2008] FamCA 1011
Decision Date: 26 November 2008

CaseChat Overview and Summary

This matter concerned parenting arrangements, property division, and child support between the Husband and the Wife, with O'Ryan J presiding. The dispute involved the allocation of parental responsibility, the children's living arrangements, the division of marital property, and the calculation of child support obligations.

The court was required to determine the terms of parenting orders, including the extent of equal shared parental responsibility, the specific living arrangements for the children, and provisions for holidays and special occasions. Additionally, the court had to make orders regarding the division of property, specifically the proceeds of sale of a property and the allocation of other assets and superannuation interests. Finally, the court was tasked with making departure orders in relation to child support, deviating from the standard assessment by the Child Support Agency.

In relation to parenting, the court discharged previous orders and established equal shared parental responsibility for long-term issues. Detailed provisions were made for the children's living arrangements with each parent, including specific times for holidays, birthdays, and alternate weekends during school terms. The court also imposed restraints on each parent from denigrating the other or promoting discussion of the proceedings in the presence of the children. For property, the court ordered the proceeds of sale of a specific property to be divided with 47.62 per cent to the Wife and 52.38 per cent to the Husband. Each party was declared the sole legal and beneficial owner of property and superannuation in their possession, with reciprocal indemnities for liabilities related to specific assets and debts. Regarding child support, departure orders were made, requiring the Husband to pay a specific monthly sum for child support until mid-2013, with subsequent administrative assessments and annual increases. The court also ordered a specific apportionment of private school fees and related expenses between the parties, noting that these departure orders were made due to special circumstances affecting the income, earning capacity, financial resources, and the costs of maintaining the children in the manner expected by their parents.

Orders

Orders of the court

Parenting

All previous parenting orders be discharged.

The Husband and the Wife have equal shared parental responsibility for the long term issues relating to the children, M born on … April 1999 and B born on … June 2001.

The children live with the Wife at all times they are not residing with the Husband in accordance with Order 5 hereof.

The children also live with the Wife:

4.1. from 3:00 pm on Christmas Day until 6:00 pm on Boxing Day in 2008 and each alternate year thereafter and from 6:00 pm on Christmas Eve until 3:00 pm on Christmas Day in 2009 and each alternate year thereafter;

4.2. from 12:00 noon on New Year’s Eve in 2008 until 6:00 pm on New Year’s Day and each alternate year thereafter;

4.3. from 6:00 pm on Easter Saturday until 6:00 pm on Easter Monday in 2009 and each alternate year thereafter and from 9:00 am on Good Friday until 6:00 pm on Easter Saturday in 2010 and each alternate year thereafter;

4.4. in the event that Mothers Day does not coincide with a period when the children are living with the Wife in accordance with these orders then from 9:00 am on Mothers Day until before school the following morning;

4.5. in the event the children are not living with the Wife in accordance with these orders on the children’s birthdays then from after school until 6:00 pm if it is a school day and from 1:00 pm to 5:00 pm if it is a weekend.

Subject to Orders 3 and 4 hereof, the children live with the Husband:

5.1. during the school term on alternate weekends from after school on Friday until before school on the following Monday, commencing the first weekend after school term commences;

5.2. in each other week during the school term from Wednesday at 6:00 pm until before school on the following Thursday;

5.3. for half of the school holidays as agreed by the Husband and the Wife, but if no agreement is reached then for the second half in 2008 and each alternate year thereafter and for the first half in 2009 and each alternate year thereafter;

5.4. from 6:00 pm on Christmas Eve until 3:00 pm on Christmas Day in 2008 and each alternate year thereafter and from 3:00 pm on Christmas Day until 6:00 pm on Boxing Day in 2009 and each alternate year thereafter;

5.5. from 12:00 noon on New Year’s Eve in 2009 until 6:00 pm on New Year’s Day and each alternate year thereafter;

5.6. from 9:00 am on Good Friday until 6:00 pm on Easter Saturday in 2009 and each alternate year thereafter and from 6:00 pm on Easter Saturday until 6:00 pm on Easter Monday in 2010 and each alternate year thereafter;

5.7. in the event that Fathers Day does not coincide with a period when the children are living with the Husband in accordance with these orders then from 9:00 am on Fathers Day until before school the following morning;

5.8. in the event the children are not living with the Husband in accordance with these orders on the children’s birthdays then from after school until 6:00 pm if it is a school day and from 1:00 pm to 5:00 pm if it is a weekend.

Orders 5.1 and 5.2 hereof be suspended during each relevant school holiday period.

For the purpose of Order 5, the handover of the children between the Husband and the Wife will take place during school holidays at venues as agreed by the Husband and the Wife and during school term shall be at venues as agreed by the Husband and the Wife and failing agreement in school terms at S School and W School.

For the purposes of these orders school holidays are defined as commencing from after school on the last day of school term until the first day of the following school term, not being a pupil free day.

Subject to these Orders, the handover of the children during the school holidays shall be at 6:00 pm.

10.

In the event that one of the parents is not able to care for the children for one or more consecutive nights during the time the children live with him or her that party will offer the other party the care of the children during that period before making other arrangements for their care.

11.

Each of the parents are restrained from doing any act or thing or saying anything to or in the presence or hearing of any of the children which amounts to a denigration of the other parent or the other parent’s partner.

12.

Each of the parents are restrained from doing any act or thing or saying anything to or in the presence or hearing of any of the children which promotes discussion or is likely to promote discussion of any issue in these proceedings .

13.

Pursuant to s 65DA(2) and s 62B of the 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 to adjust and comply with an order are set out in the attached Family Law Courts’ Fact Sheet entitled “Parenting Orders – obligations, consequences and who can help” and those particulars are incorporated in these Orders.

Property

Pursuant to s 79 of the Family Law Act

14.

By 4:00 pm on 5 December 2008 the Husband and the Wife execute all documents and writings and do all acts and things necessary to cause the proceeds of sale of the property situate at and known as K property currently held in cash management account number … to be paid as follows:

14.1 in payment to the Wife of 47.62 per cent;

14.2 in payment of the balance being 52.38 per cent to the Husband.

15.

The Wife be declared the sole legal and beneficial owner of all items of property and superannuation interests in her possession, control or ownership as at the date of this order.

16.

The Husband be declared the sole legal and beneficial owner of all items of property and superannuation interests in his possession, control or ownership as at the date of this order.

17.

The Wife do all acts and things, execute all documents and writings and pay all monies necessary to indemnify and keep indemnified the Husband against all claims, actions, suits or demands that may be made against the Husband for any liability in relation to or arising out of:

17.1. the mortgage secured on the Unit in C;

17.2. any personal guarantees given by the Wife for office plant and equipment;

17.3. any other liabilities in the sole name of the Wife whether from her position as a director and shareholder of A Holdings Pty Ltd or otherwise including in relation to any loan account in the Company.

18.

The Husband do all acts and things, execute all documents and writings and pay all monies necessary to indemnify and keep indemnified the Wife against all claims, actions, suits or demands that may be made against the Wife in relation to or arising out of any liability of any nature which the Husband has in his name either solely, jointly or with any other third person or entity.

Child Support

19.

There be a departure in relation to the Husband’s child support liability as assessed by the Child Support Agency so that:

19.1 the Husband pay to the Wife in support of the children M born on … April 1999 and B born on … June 2001 the sum of $2,008.67 per month for the child support period commencing 1 July 2008 until 30 June 2013;

19.2 subsequent to 1 July 2013, the Husband pay to the Wife an administrative assessment of child support in accordance with the provisions of the Child Support (Assessment) Act 1989 (Cth) ;

19.3 the child support referred to in Order 19.1 herein be increased on 1 July of each year by the Child Support Inflation Factor as determined from time to time pursuant to the Child Support (Assessment) Act.

20.

There be a departure in relation to the Husband’s child support liability as assessed by the Child Support Agency so that:

20.1. the Husband pay 67.23 per cent and the Wife pay 32.77 per cent of private school fees and related school expenses and school uniforms referable to the attendance of the child M at S School and the attendance of the child B at W School until completion of each of their secondary schooling and for any extracurricular activities of the children;

20.2. such non-periodic child support to continue until the happening of a child support terminating event.

21.

Any payments of non periodic child support by the Husband pursuant to these orders not be credited against any periodic support payable by the Husband in respect of the said children pursuant to any administrative assessment issued by way of Order 19.1 hereof.

22.

It be noted that the departure orders are made on the following grounds:

22.1. in special circumstances of the case the assessment has resulted in an unjust and inequitable determination of the level of child support because of the income, earning capacity and financial resources of the Husband and the Wife, s 117(2)(c)(ib) Child Support Assessment Act;

22.2. in the special circumstances of the case the costs of maintaining the children are significantly affected because the children are being cared for and educated in the manner that was expected by their parents, s 117(2)(b)(ii) Child Support Assessment Act.

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.