Blakeslee and Granville - [2016] FamCA 422

FAMILY COURT OF AUSTRALIA

BLAKESLEE & GRANVILLE

[2016] FamCA 422

FAMILY LAW – Where there were disputes about the time children would spend with each parent – where it was appropriate that generally the interim orders which had applied for some time should continue – where there was a dispute about contributions to the acquisition conservation and maintenance of property including a dispute as to the categorisation of a gift from a parent of one of the parties – the possible application of the Rule in Jones v Dunkell – whether the court has jurisdiction if superannuation funds are not valued in accordance with the regulations but the parties agree on the valuations – superannuation funds in the UK excluded.

Family Law Act 1975 (Cth) s 60CC, s 60CC(3)(f) & (l), s 75(2), s 79(2), s 79(4)(e), s 90MT(4), s 92MT(2 ) & s 92MT(2)(a) and (b), s 95(2)

Stanford v Stanford [2012] HCA 52

APPLICANT:

Ms Blakeslee

RESPONDENT:

Mr Granville

FILE NUMBER:

CAC

751

2013

DATE DELIVERED:

19 May 2016

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

9, 10 and 11 July 2014 and 9 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr James

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Millar

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini Dunn

Orders

Children

That the parents have equal shared parental responsibility for the children B born … 2008, C born … 2007 and D born … 2011 ("the children"), save that the mother have sole parental responsibility for medical and educational decisions relating to the children.
The children shall live with the father:
(a)From 8 am Wednesday to 6 pm Friday and continuing each alternate week thereafter.
(b)From 8 am Thursday to 6 pm Sunday and continuing each alternate week thereafter (continuing the pattern of the interim orders).
The children will otherwise except in accordance with these orders, live with the mother.
Each party may leave the children in the care of the children’s grandparents or in after school care provided they notify the other parent as soon as is practicable of the location of the children when they are not in the parent’s care.
During school holidays the children will spend time with the parents as follows:
(a)With the mother for the first half of all school holiday periods in years ending in an odd number and with the father for the first half of all school holiday periods commencing in years ending in an even number (including years ending in zero);
(b)With the mother for the second half of all school holidays periods in years ending in an even number (including years ending in zero) and with the father for the second half of all school holiday periods in years ending in an odd number; and
(c)Such further or other times as the parties may agree.
That for the purposes of defining school holidays, in the absence of any written agreement between the parties to the contrary, the…

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 Blakeslee and Granville

Details

AGLC: Blakeslee and Granville [2016] FamCA 422
Case: [2016] FamCA 422
Decision Date: 19 May 2016

CaseChat Overview and Summary

This matter concerned orders sought by the parties, Blakeslee and Granville, in relation to their children and property settlement. The dispute was heard by Faulks DCJ.

The court was required to determine issues concerning the parenting arrangements for the parties' three children, including the allocation of parental responsibility and the time the children would spend with each parent. Additionally, the court needed to make orders regarding the division of property between the parties, including a specific property and a sum of money, and to address the division of superannuation interests.

In relation to parenting, the court ordered equal shared parental responsibility for the children, with the mother having sole responsibility for medical and educational decisions. The children were ordered to live with the father for specific periods each week, and otherwise with the mother, with detailed provisions for school holidays. The court considered the children's expressed views, their relationships with each parent and grandparents, and the past involvement of each parent. The court noted the mother's historical primary financial care for the children and formed an impression that the father was not overwhelmingly enthusiastic about pursuing remunerated employment.

Regarding property, the wife was ordered to pay the husband $300,000 within 60 days, and contemporaneously, the husband was to transfer his interest in a property at E Street, Suburb F, ACT, to the wife. The wife was to secure the discharge or release from the mortgage on that property. The court also made orders for the division of superannuation, allocating a base amount from the mother's PSSap Superannuation Fund to the father, and further ordered that a sum of $15,800, contributed equally by each party, be placed in trust for the children.

Orders

Orders of the court

Children

That the parents have equal shared parental responsibility for the children B born … 2008, C born … 2007 and D born … 2011 ("the children"), save that the mother have sole parental responsibility for medical and educational decisions relating to the children.

The children shall live with the father:

(a) From 8 am Wednesday to 6 pm Friday and continuing each alternate week thereafter.

(b) From 8 am Thursday to 6 pm Sunday and continuing each alternate week thereafter (continuing the pattern of the interim orders).

The children will otherwise except in accordance with these orders, live with the mother.

Each party may leave the children in the care of the children’s grandparents or in after school care provided they notify the other parent as soon as is practicable of the location of the children when they are not in the parent’s care.

During school holidays the children will spend time with the parents as follows:

(a) With the mother for the first half of all school holiday periods in years ending in an odd number and with the father for the first half of all school holiday periods commencing in years ending in an even number (including years ending in zero);

(b) With the mother for the second half of all school holidays periods in years ending in an even number (including years ending in zero) and with the father for the second half of all school holiday periods in years ending in an odd number; and

That for the purposes of defining school holidays, in the absence of any written agreement between the parties to the contrary, the following apply:

(a) The first half of school holidays is deemed to commence at the end of classes on the last day of school;

(b) The second half of the December/January school holidays is deemed to commence at 5pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year;

(c) The second half of all other school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays or at 5pm on the middle Wednesday of the school holidays if the relevant school holiday period is for an odd number of weeks; and

(d) One half of the school holiday period be calculated by dividing the total number of days the children do not attend school by 2. If the number of days are not even, the father is to have the extra day in years ending in an even number including years ending in zero) and the mother is to have the extra day in years ending in an odd number.

Property

Within 60 days of the operative date of these orders or such further time as may be agreed between the parties, the wife will pay to the husband (or as he may direct in writing) the sum of $300,000 by way of property settlement.

Contemporaneously with such payment the husband will transfer to the wife, at her expense, all his right title and interest, both at law and in equity, in the property known as E Street, Suburb F in the Australian Capital Territory being the residue unexpired of a Crown Lease for ninety-nine years being in respect of the piece and parcel of land known as Block … Section … contained in Certificate of Title Volume … folio … in the Land Titles Registry in Canberra ACT.

The wife shall at, or prior to, such transfer either obtain the discharge of mortgage (registration number …) from the parties to the Commonwealth Bank of Australia or secure the release of the husband from the personal covenants created by the said mortgage.

10.

As and from the operative date of these orders, the wife will indemnify the husband and keep the husband indemnified from any liability for mortgage repayments or outgoings in respect of the said property.

11.

Otherwise each or the parties will as against the other be the beneficial owner of all property whether real or personal in the possession or control of that party.

12.

If the wife should fail to make the payment referred to in Order 7 above or by such further time as the parties may agree in writing, the parties and each of shall do all such things as may be necessary to effect the sale of the said Suburb F property and there is liberty in such circumstances to apply about the terms of the sale if the parties cannot reach agreement about them.

13.

Upon settlement of such sale the net proceeds will be divided by payment to the husband of $300,000 and the payment to the wife of the balance.

Superannuation

14.

That in accordance with s 90MT(4) of the Family Law Act 1975, a base amount of $48,983 is allocated to Mr Granville out of Ms Blakeslee’s interest in the PSSap Superannuation Fund.

15.

That, in accordance with s 90MT(1)(a) of the Family Law Act 1975:

(a) Mr Granville (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

(b) The entitlement of Ms Blakeslee in the PSSap Superannuation Fund (or the entitlement of such other person who becomes entitled to receive a payment out of Ms Blakeslee’s superannuation interest) is correspondingly reduced by force of this Order; and

(c) That this Order has effect from the operative time and the operative time is 17 June 2016, or such earlier time when the trustee signifies to the parties or the lawyer for the parties that the trustee is satisfied that procedural fairness has been afforded to the trustee. The lawyers for the husband shall notify the trustee of these Orders by email this day and send a hard copy to the trustee as soon as practicable thereafter.

(d) The trustee has liberty to apply on or before 4pm on 16 June 2016

16.

That the trustee of the PSSap Superannuation Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to Mr Granville in the immediately preceding clause of this Order; and

(b) Pay the entitlement whenever the trustee makes a splittable payment from Ms Blakeslee’s interest in the PSSap Superannuation Fund.

17.

That these Orders shall bind the Trustee of PSSap.

18.

Otherwise each party will retain as against the other any interest in any other superannuation fund whether in Australia or otherwise.

19.

Within seven days of the date of these Orders the husband and wife do all acts and things and sign all necessary documents to cause the sum of $15,800 (contributed to equally by each of them) to be placed in trust with the husband and wife as trustees to be held by them in trust for the three children of the parties.

20.

All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

21.

Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

22.

Pursuant to s 62B and s 65DA(2), 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 to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

23.

The matter be removed from the Pending Cases Inventory.

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

Among the additional considerations I draw attention to the following matters. I have already discussed the views that the children have expressed. I believe that the father has persuaded himself (but not necessarily me) that the children want to spend more time with him. This appears to be in part corroborated by his mother. For the reasons expressed by the Family Consultant I do not accept that those reasons should carry the day. The children would like to spend time with each of their parents, would benefit from spending time with each of their parents and will spend time with each of their parents. Each of the parents reports, and the Family Consultant confirms, that the children have a good relationship with each of the parents and with each of their relevant grandparents. Nothing more in the circumstances needs to be added to that. Each of the parents has done what was required at different points in the relationship between them and the children to take the opportunity to participate in making decisions about the children; to spend time with them; and to communicate with the children. There is some dispute between them as to the predominance of the father’s involvement with the children at, and preceding, the time of separation. To the extent that it might be said, as the father asserts, that he was the primary parent at the time of separation, this was because the arrangements between the parents permitted this to be so. It is a matter of commendation of the parties that they were able to reach arrangements which ensured that the children had the benefit both of a primary earning parent and a particular caring parent at varying times. I note that the mother had the view the father was not as engaged as he should have been on behalf of the children. In my opinion it is likely that each of the parents was looking back on that time with a degree of partiality which affects his or her judgment of the other. This is not a case where either parent has in any way shirked his or her responsibility for the children even when this has involved considerable personal effort. The maternal grandmother has been a significantly helpful part of the arrangements about the children and it is commendable that her role is acknowledged and will continue in some respects. The primary financial care of the children has always been the responsibility of the mother. It was reflected in the Family Report that she was paying $960[3] a month in child support. It appeared to be part of her complaint that the husband was not applying himself towards his work and to the generation of funds to contribute for the support of the children as well. It would be fair to say, that I formed the impression that the husband was not overwhelmingly enthusiastic about pursuing remunerated employment of one sort or another. [3] At present $308 per fortnight It is likely, in my opinion, that the mother will continue to be the primary financial resource and support for the children. I do note in passing (and will deal with in more detail in the property section of this judgment) that the children have been the beneficiaries of some contributions from the father’s family.