BLIZZARD & CAMOES - [2015] FamCA 1090

FAMILY COURT OF AUSTRALIA

BLIZZARD & CAMOES

[2015] FamCA 1090

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where the mother seeks to relocate the children to Country I – Where the father and the Independent Children’s Lawyer oppose the application – Consideration of section 60CC – Where there is dispute as to whether the parties intended to permanently reside in Australia – Where the children were born in Australia and have never been overseas – Where the mother suffers from reactional depression – Where the Court finds orders for the children to remain in Australia to be in their best interest – Where the Court finds the presumption of equal shared parental responsibility is to apply – Where the Court finds equal time is not Reasonably practicable – Orders made as sought by the Independent Children’s Lawyer.

FAMILY LAW – PROPERTY – Where the parties have assets in Europe and Australia – Where it is agreed orders are to be made dividing the Australian pool of assets and superannuation – Where the Court finds it just and equitable for there to be orders for the alteration of property interests pursuant to section 90SM – Where the primary Australian asset is the former family home and both parties seek to liquidate it – Whether money advanced by the de facto wife’s parents is a loan – Where the Court finds no loan exists but the funds are a direct financial contribution – Where the Court finds an overall equality of contribution by the parties – Consideration of section 90SF(3) factors – Where the de facto wife has greater responsibility to care for the children – Where the Court finds an adjustment is to be made in favour of the de facto wife – Orders made for the former family home to be sold with the net proceeds of sale to be divided 69 per cent to the de facto wife and 31 per cent to the de facto husband – Superannuation splitting order made.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 90SF, 90SM

MRR v GR (2010) 240 CLR 461
Taylor & Barker (2008) 37 FamLR 461

APPLICANT:

Ms Blizzard

RESPONDENT:

Mr Camoes

INDEPENDENT CHILDREN’S LAWYER:

Ms Lonergan

FILE NUMBER:

MLC

8891

2013

DATE DELIVERED:

8 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Stevenson J

HEARING DATE:

31 August, 1-4 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Puckey

SOLICITOR FOR THE APPLICANT:

Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hall

SOLICITOR FOR THE RESPONDENT:

Robinson Gill

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidleson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

Parenting

All existing orders in relation to the children:
·B born on … 2008 (“B”); and
·C born on … 2011 (“C”)
(collectively “the children”) are discharged.
The parties will have equal shared parental responsibility for the children.
The children will live with the mother.
The children will spend time with the father as follows:
(a) Until…

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 BLIZZARD & CAMOES

Details

AGLC: BLIZZARD & CAMOES [2015] FamCA 1090
Case: [2015] FamCA 1090
Decision Date: 8 December 2015

CaseChat Overview and Summary

In the matter of BLIZZARD & CAMOES, Stevenson J of the Family Court of Australia made orders concerning parenting arrangements for two children, B and C, and the alteration of property interests between the de facto parties. The dispute involved the establishment of new parenting orders, discharging all existing arrangements, and the division of a jointly owned property and superannuation interests.

The court was required to determine the most appropriate parenting arrangements for the children, including their living arrangements, time spent with each parent, and the allocation of parental responsibility. Additionally, the court had to determine how the parties' property, specifically a property and superannuation, would be divided. This involved considering the percentage split of the sale proceeds from the property and the method for distributing a portion of the de facto husband's superannuation to the de facto wife.

Stevenson J ordered that both parents would have equal shared parental responsibility for the children, with the children to live with the mother. The father's time with the children was detailed, with specific arrangements for weekends, Wednesdays, and special occasions, which were to evolve as the younger child, C, approached the age of five. The court also ordered the sale of a property, with the proceeds to be distributed such that the de facto wife received 69 per cent of the balance after sale costs and mortgage discharge. Furthermore, the court made orders binding on the trustee of the de facto husband's superannuation fund, allocating a base amount of $23,651 to the de facto wife, to be paid from splittable payments as they become payable.

Orders

Orders of the court

Parenting

All existing orders in relation to the children:

· B born on … 2008 (“B”); and

· C born on … 2011 (“C”)

(collectively “the children”) are discharged.

The parties will have equal shared parental responsibility for the children.

The children will live with the mother.

The children will spend time with the father as follows:

(a) Until C attains the age of five years:

(i) Each alternate weekend from the conclusion of school/childcare on Friday until the commencement of school/childcare on Monday;

(ii) Each alternate Wednesday from the commencement of school/childcare on Thursday; and

(iii) On special occasions as defined in Order (5).

(b) From C’s fifth birthday:

(i) Each alternate weekend from the conclusion of school on Thursday until the commencement of school on Tuesday;

(ii) For one week in each Victorian school holiday period as agreed from time to time or to be the first week in default of agreement; and

(iii) For one half of the Christmas school holidays commencing in 2016/2017 as agreed from time to time or to be the first half in default of agreement.

On special occasions the children will spend time with each parent as follows:

(a) with the father from 10.00 am to 5.00 pm on Father’s Day;

(b) with the mother from 10.00 am to 5.00 pm on Mother’s Day;

(d) for a period of four hours on each child’s birthday as agreed or from 3.30 pm until 7.30 pm with the parent who is not caring for the children pursuant to these Orders;

(e) with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2015 and each alternate year thereafter;

(f) with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2016 and each alternate year thereafter; and

(g) with the father from 3.00 pm on New Year’s Eve until 3.00 pm on New Year’s Day in 2015/2016 and each alternate year thereafter.

The parties will execute changeovers for the purpose of implementation of these Orders at the children’s school/childcare centre if possible; or otherwise by the father collecting the children from the mother’s residence at the commencement of time and the mother collecting them at the father’s residence at the conclusion of time.

Each of the parties is at liberty to travel with the children to his and her country of origin, or such other international destinations as may be agreed from time to time, on one occasion per year.

Each party is at liberty to communicate with the children by telephone and electronic means at all Reasonable times.

Each party will notify the other as soon as is practicable of any serious illness or injury suffered by either child while in his or her care.

10.

Each party will keep the other informed at all times of his and her residential and email address and contact telephone number.

Alteration of property interests

11.

That both parties do all things and execute all documents necessary to effect the sale, for the best price Reasonably obtainable, of the property situate at and known as D Street, Suburb E in the State of Victoria and to distribute the proceeds of such sale as follows:

(a) in payment of agent’s commission and expenses incidental to the sale;

(b) in payment of legal costs and expenses incidental to the sale;

(d) in payment of an amount equal to 69 per cent of the balance then remaining to the de facto wife; and

(e) in payment of the balance to the de facto husband.

12.

That Orders (13) to (16) of these Orders are binding on Colonial First State Investments Limited as trustee of Colonial First State FirstChoice Personal Super account (“the fund”).

13.

That the base amount allocated to the de facto wife in these proceedings out of the interest of the de facto husband (member number 0100 1983 0064) in these proceedings in the fund is $23,651 (“the base amount”).

14.

That pursuant to section 90MT(1) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the de facto husband in the fund the applicant shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

15.

That Order (13) has effect from the operative time.

16.

The operative time for the purposes of Order (13) is four (4) business days after the date of service of a certified court sealed copy of these orders upon the trustee of the fund.

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.