Bertram and Bertram - [2016] FamCA 383

FAMILY COURT OF AUSTRALIA

BERTRAM & BERTRAM

[2016] FamCA 383

FAMILY LAW – CHILDREN – final orders – where the parties live in different states – where significant weight is given to the wishes of the children – where it is ordered that the parties have shared parental responsibility but that the father have sole parental responsibility for matters relating to health and education affecting one child – where it is ordered that the children live with the father and spend time with the mother at such times to be agreed between the parties.

FAMILY LAW – PROPERTY – final orders – where the husband seeks orders by way of property settlement – where the wife opposes the sale of one property – where consideration is given to contributions – where the wife is required to pay the husband a settlement sum – where various ancillary orders are made by way of property settlement.

Family Law Act 1975 (Cth) s 4, 60CA, 60B, 60CC, 65DAA, 75, 79

Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Karen & Rita (1995) FLC 92-632
Pierce & Pierce (1999) FLC 92-844
Scott & Scott [2006] FamCA 1379
Stanford v Stanford (2012) 247 CLR 108
Waters & Jurek (1995) FLC 92-635

APPLICANT:

Mr Bertram

RESPONDENT:

Ms Bertram

FILE NUMBER:

ADC

2917

2015

DATE DELIVERED:

20 May 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

29 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dickson

SOLICITOR FOR THE APPLICANT:

Ouwens Lawyers

COUNSEL FOR THE RESPONDENT:

Litigant in Person by telephone

SOLICITOR FOR THE RESPONDENT:

Orders

The parties have shared parental responsibility for C born … 2004 (“C”) and equal shared parental responsibility for B born … 2002 (“B”).
That the husband have sole parental responsibility in respect of matters relating to the education and health affecting C.
That in respect of education and health issues affecting C, the husband will advise the wife in writing (electronically or otherwise) and provide his views about any major issues affecting the child’s education and health and shall consult with the wife about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties THEN the husband shall make the final decision and advise the wife in writing (electronically or otherwise) of that decision.
That C and B shall live with the husband.
That B shall spend time with the wife on such dates and times as may be agreed between the parties but in any event in accordance with the child’s wishes.
That C shall spend time with the wife on such dates and times as may be agreed between the parties.
That the husband be at liberty to renew the Australian passports for the said children at his sole expense and to sign all documents necessary to secure the passports for the said children.
That the requirements for the wife’s signature and consent for the said children’s…

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 Bertram and Bertram

Details

AGLC: Bertram and Bertram [2016] FamCA 383
Case: [2016] FamCA 383
Decision Date: 20 May 2016

CaseChat Overview and Summary

This matter concerned the orders of Berman J in relation to the parental responsibility and living arrangements for two children, C and B, and the settlement of property between the parties. The court was required to determine the terms of shared and sole parental responsibility for the children, including decision-making regarding their education and health, as well as their primary residence and time spent with each parent. Furthermore, the court was tasked with finalising the division of the parties' assets and liabilities.

The court ordered that the parties share parental responsibility for C and B, with equal shared parental responsibility for B. However, the husband was granted sole parental responsibility for C concerning matters of education and health, with a specific process outlined for consultation and final decision-making. The children were ordered to live with the husband, with specific provisions for B's time with the wife based on the child's wishes, and for C's time with the wife to be by agreement. The husband was also authorised to renew the children's passports at his expense, dispensing with the wife's signature.

In terms of property settlement, the wife was ordered to pay a settlement sum to the husband within ninety days, contemporaneously with the husband transferring his interest in the E Street property. The wife was to transfer her interest in the G Street property to the husband, who would then indemnify her against any mortgage or liability related to that property. Each party was to retain specific assets as their sole property, including superannuation, vehicles, investments, and certain trusts or properties. The orders also addressed the continuation of mortgage payments pending settlement, mutual indemnities for debts, the closure of joint bank accounts, and provisions for default in payment of the settlement sum, including the potential sale of the E Street property. Finally, the court provided for a Registrar to sign documents if a party failed to do so.

Orders

Orders of the court

The parties have shared parental responsibility for C born … 2004 (“C”) and equal shared parental responsibility for B born … 2002 (“B”).

That the husband have sole parental responsibility in respect of matters relating to the education and health affecting C.

That in respect of education and health issues affecting C, the husband will advise the wife in writing (electronically or otherwise) and provide his views about any major issues affecting the child’s education and health and shall consult with the wife about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties THEN the husband shall make the final decision and advise the wife in writing (electronically or otherwise) of that decision.

That C and B shall live with the husband.

That B shall spend time with the wife on such dates and times as may be agreed between the parties but in any event in accordance with the child’s wishes.

That C shall spend time with the wife on such dates and times as may be agreed between the parties.

That the husband be at liberty to renew the Australian passports for the said children at his sole expense and to sign all documents necessary to secure the passports for the said children.

That the requirements for the wife’s signature and consent for the said children’s passports shall be dispensed with.

That by way of settlement of property:-

(a) That within ninety (90) days of this order the wife do pay to the husband the settlement sum of FOUR HUNDRED AND TWENTY FIVE THOUSAND ONE HUNDRED AND FIFTY DOLLARS ($425,150).

(b) That contemporaneously with the payment of the said settlement sum the husband do all things necessary and sign all such documents as may be required to transfer his estate, title and interest in the property situate at E Street, Suburb F in the state of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio ....

(c) That the wife do forthwith do all things necessary and sign all such documents as may be required to transfer her estate, title and interest in the property at G Street, Suburb D being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … to the husband and upon transfer the wife shall have no right or interest in the said property.

(d) That contemporaneously with the transfer of the wife’s interest in the Suburb D property, the husband will do all things necessary to indemnify the wife in respect of any mortgage or other liability related to the said property AND will refinance, discharge the current finance or in any event obtain written confirmation that the wife has no further liability in respect of the said property.

(e) That the husband do retain as his sole property the following assets free from all claim and demand by the wife:-

(i) his superannuation;

(ii) his prestige motor vehicle;

(iii) his shares, investments and savings and interest in any life insurance policy;

(iv) furniture and personal effects in his possession;

(v) the Mr Bertram Family Trust.

(f) That the wife do retain as her sole property the following assets free from all claim and demand by the husband:-

(i) her superannuation entitlement with Super SA, Northern Territory Government and Public Authority Superannuation Scheme, AMP and Super SA Triple S Scheme;

(ii) her shares, investments, savings and interest in any life insurance policy.

(iii) her motor vehicle;

(iv) the porta-loo, caravan and exercise gym equipment;

(v) furniture and personal belongings;

(vi) the property situate at H Street, I Town being the whole of the land comprised and described in Certificate of Title Register Book … Folio ...

(g) That pending final settlement, the husband do continue to meet all mortgage instalments to the Commonwealth Bank of Australia as and when they fall due being mortgage number … and mortgage number ....

(h) That each party shall keep the other indemnified in relation to actions, claims, proceedings and demands howsoever arising in relation to any debts and liabilities incurred in their respective names.

(i) That the husband shall have authority and be at liberty to execute all documents necessary to close all joint bank accounts including but not limited to credit card accounts and various joint accounts.

(j) That should the wife default in the payment of the settlement sum to the husband either in whole or in part and should such default continue for thirty (30) days THEN the parties will do all things necessary to cause the Suburb F property to be placed on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree or in default of agreement as may be made by this Honourable Court and from the net proceeds of sale following the payment out of the costs properly incurred in the marketing and sale of the property the husband shall receive so much of the settlement sum as shall remain outstanding together with default interest at the rate of 10 per cent per annum, with the wife to receive the balance if any.

(k) That if either party fails, neglects or refuses to sign any document necessary to give effect to the terms of these orders THEN a Registrar of this Honourable Court upon proof by affidavit of such failure, neglect or refusal is hereby authorised to sign any document necessary to give effect to the terms of these orders.

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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