FAMILY COURT OF AUSTRALIA
| BENWORTH & BENWORTH | [2011] FamCA 328 |
| FAMILY LAW - CHILDREN – proposal for the child to live with the mother in London, United Kingdom – consideration of the benefit to the child of a meaningful relationship with both parents – likely effect on the child – all relevant considerations to the child’s best interests FAMILY LAW - PROPERTY SETTLEMENT – assessment of contributions – adjustment in relation to s 75(2) matters – whether proposed orders are just and equitable FAMILY LAW - SPOUSAL MAINTENANCE – whether the father has the capacity to pay. |
| Family Law Act 1975 (Cth): ss60CA, 60CC(2) & (3), 61DA, 65DAA |
| Mazorski & Albright (2007) FamCA 520; Godfrey & Sanders (2008) FLR 287 at 298; Mulvany & Mulane (2009) FLC 93-404 at 83,450; McCall & Clark (2009) FLC 93-405 at 83,476. |
| APPLICANT: | Mr Benworth |
| RESPONDENT: | Ms Benworth |
| FILE NUMBER: | SYC | 8541 | of | 2007 |
| DATE DELIVERED: | 13 May 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rose J |
| HEARING DATES: | 9 February 2010; 21 January 2011; 8 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | L Judge |
| SOLICITOR FOR THE APPLICANT: | Goldrick Farrell Mullan |
| COUNSEL FOR THE RESPONDENT: | R Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Reid Family Lawyers |
Orders
Parenting
That all previous Orders made in relation to M (“the child”) born … May 2004 are discharged.
That the parties have equal shared parental responsibility for the long-term care welfare and development of the child and as defined in section 4(1) of the Family Law Act1975 (“the Act”) AND that the parties shall note the obligations created by this Order and the parenting orders made this day and the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexures A and B.
That each of the parties be responsible for the day to day care welfare and development of the child when he is in his or her care.
That the child live with the mother.
That the application of the mother for an order permitting her to live with the child in London, United Kingdom is dismissed.
That the father may spend time and communicate with the child as follows:
During school term
(a)Each alternate week from after school on Thursday until the commencement of school on Friday in accordance with the current sequence pursuant to the Orders made by consent on 9 February 2010.
(b)Each other week from after school Thursday until the commencement of school on Monday in accordance with the current sequence pursuant to the Orders made by consent on 9 February 2010.
School holidays
(c)Half of each end of term school holiday period as agreed between the parties or failing agreement upon the father giving the mother six (6) weeks written notice.
Other occasions
(d)From 6.00pm on Christmas Eve to 8.30am on Boxing Day in even numbered years.
(e)On Father’s Day from 9.00am until 6.00pm in the event that Father’s Day does not fall…
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- Case
- [2011] FamCA 328
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child, M, in relation to proposed parenting orders, specifically addressing the mother's application to relocate with the child to London. Concurrently, the court had to assess the parties' respective contributions and consider adjustments under section 75(2) of the Family Law Act 1975 for the property settlement. Finally, the court needed to determine whether the father had the capacity to pay spousal maintenance as sought by the mother.
Rose J made orders for equal shared parental responsibility for the long-term care, welfare, and development of the child, with the child to live with the mother. However, the mother's application for the child to live with her in London was dismissed, with detailed provisions made for the father's time with the child, including during school terms, holidays, and other specific occasions, as well as communication arrangements. The court also made orders for the property settlement, including the transfer of a Sydney property to the father upon payment of a sum to the mother, and the transfer of a London property to the mother. The mother's application for spousal maintenance was dismissed.
Orders
Orders of the court
Parenting
1.
That all previous Orders made in relation to M (“the child”) born … May 2004 are discharged.
2.
That the parties have equal shared parental responsibility for the long-term care welfare and development of the child and as defined in section 4(1) of the Family Law Act 1975 (“the Act”) AND that the parties shall note the obligations created by this Order and the parenting orders made this day and the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexures A and B.
3.
That each of the parties be responsible for the day to day care welfare and development of the child when he is in his or her care.
4.
That the child live with the mother.
5.
That the application of the mother for an order permitting her to live with the child in London, United Kingdom is dismissed.
6.
That the father may spend time and communicate with the child as follows:
During school term
(a) Each alternate week from after school on Thursday until the commencement of school on Friday in accordance with the current sequence pursuant to the Orders made by consent on 9 February 2010.
(b) Each other week from after school Thursday until the commencement of school on Monday in accordance with the current sequence pursuant to the Orders made by consent on 9 February 2010.
School holidays
(c) Half of each end of term school holiday period as agreed between the parties or failing agreement upon the father giving the mother six (6) weeks written notice.
Other occasions
(d) From 6.00pm on Christmas Eve to 8.30am on Boxing Day in even numbered years.
(e) On Father’s Day from 9.00am until 6.00pm in the event that Father’s Day does not fall on a day that the child would otherwise spend in the care of the father.
(f) On the child’s birthday for such period as agreed between the parties or failing agreement for three (3) hours commencing from after school should the birthday fall on a week day or for the same period on a weekend should the birthday fall on such a day, as agreed or failing agreement upon the father giving the mother 14 days written notice.
(g) On the father’s birthday from 9.00am to 6.00pm.
(h) During such alternative or substituted periods as the parties may agree upon from time to time.
Communication
(i) The father may telephone the child every second day at all reasonable times.
7.
That Order 6 is suspended as follows:
(a) On the mother’s birthday from 9.00am to 6.00pm.
(b) On Mother’s Day from 9.00am to 6.00pm.
8.
That unless otherwise agreed the father or Ms A Benworth shall collect and return the child in accordance with these Orders by collecting him from his school during school term and otherwise returning him to the mother’s home and on non-school days collecting the child from and returning him to the mother’s home.
9.
That the mother authorise and request the Principal of any school attended by the child to furnish the father at his request and at his expense if necessary copies of all of the child’s school reports and relevant notices and correspondence.
10.
That in the event of the child becoming seriously ill or injured whilst in the care of one of the parties then that party shall promptly notify the other party of the relevant information as well as the name and telephone number of such hospital and medical practitioner from whom the child is receiving or likely to receive treatment.
11.
That the parties are restrained from engaging in any derogatory comments about the other or any member of his or her extended family in the presence or hearing of the child and shall use his or her best endeavours to ensure that no other person conducts himself or herself in that fashion.
12.
The Court requests that until further order the Australian Federal Police place M (“the child”) born … May 2004 be placed on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing the removal of the child from Australia in breach of these Orders AND this Order shall cease to have effect 10 years after the date it is made.
13.
That neither party is permitted to remove the child from the Commonwealth of Australia without an order of the Court.
14.
That the Regional Registry Manager NSW or her nominee shall immediately notify the Marshal, Family Court of Australia, the Australian Federal Police (Family Law Team) at Sydney, and New South Wales Police of these Orders by email attaching a copy of these Orders.
15.
That within seven (7) days from the date of these Orders the parties consult with the Regional Co-ordinator, Child Dispute Services at the Sydney Registry for the purpose of receiving a recommendation of a suitable program in which they could be engaged to improve communication between them and co-operative parenting in relation to all matters affecting the child AND they shall then take all immediate steps to enrol in such a program and keep the other party informed of such enrolment and completion of the program.
Property settlement
16.
That the father pay to the mother the sum of $108,652.00 on or before 5.00pm 15 August 2011 or by such other date and time that the parties may agree upon in writing.
17.
That upon the father complying with Order 16 the mother shall forthwith sign all documents and do all things necessary to transfer to the father the whole of her right title and interest in the property situate at and known as … S Street, Sydney Suburb 1 in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier … (“the Sydney Suburb 1 property”).
18.
That the father pay all mortgage instalments, council rates, water rates and all other outgoings in relation to the Sydney Suburb 1 property from the date of these Orders and he shall indemnify the mother in respect of any claims and demands that may be made upon her in relation to such liabilities.
19.
That on or before 5.00pm 10 June 2011 or such other date and time as the parties may agree upon in writing the father shall transfer to the mother the whole of his right title and interest in the property situate at and known as … J Street, London in the United Kingdom (“the London property”) and all of the contents thereof which may be owned by the parties jointly or severally AND FURTHER THAT the father sign all documents and do all acts and things necessary to ensure that the mother is acknowledged and permitted to receive all rent paid or payable for the occupation of the London property from the date of these Orders.
20.
That the mother forthwith pay all mortgage instalments, council rates, water rates and other outgoings in respect of the London property and she shall indemnify the father in respect of any claims and demands that may be made upon him in relation to such liabilities.
21.
That the parties equally bear the liability for any capital gains tax arising from the transfer by the father to the mother of his interest in the London property pursuant to these Orders and they shall appoint an independent accountant to calculate such liability if any and meet the fees of doing so equally.
22.
That the parties sign all documents and do all acts and things necessary for the purpose of transferring to the father all funds held in trust by their agent in the United Kingdom for payment of tax or otherwise PROVIDED THAT such funds may be applied by the parties in satisfaction of their joint or individual liability for capital gains tax pursuant to these Orders.
23.
Declare that each of the parties is the beneficial owner and entitled to all items of personalty in his or her respective possession and superannuation benefits in his or her name respectively subject to the Orders made this day.
Spousal maintenance
24.
That the application of the mother for an order for spousal maintenance is dismissed.
Procedural
25.
That all documents produced on subpoena may be returned to the person who produced the same.
26.
That the proceedings be removed from the Active Pending Cases List.
Background
Background to the litigation
Full text does not contain this section.
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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