BOSTON & BOSTON - [2013] FamCA 439

FAMILY COURT OF AUSTRALIA

BOSTON & BOSTON

[2013] FamCA 439

FAMILY LAW – CHILDREN – Application by the father to take the child on a holiday overseas in the July 2013 school holidays – where the mother opposes the application – best interests – where there is a lack of information concerning the funding of the travel – no orders made allowing the father to take the child on the requested holiday.

FAMILY LAW – PROPERTY – Interim distribution – where the mother seeks orders providing for the discharge of school fees and the discharge of arrears relating to outstanding loans over the former matrimonial home and then the division of the balance of the proceeds as partial property settlement – orders made.

Family Law Act 1975 (Cth) s 60CC

APPLICANT:

Mr Boston

RESPONDENT:

Ms Boston

FILE NUMBER:

ADC

1946

2012

DATE DELIVERED:

31 May 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

31 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hurley

SOLICITOR FOR THE APPLICANT:

Stevanja & Associates

COUNSEL FOR THE RESPONDENT:

Mr Berman, SC

SOLICITOR FOR THE RESPONDENT:

David Burrell & Co

Orders

Upon noting the Court declines to make an order in relation to:

(a) the sale of the former matrimonial home; and

(b)the child R travelling overseas with the husband to Switzerland at this time.

B Accountants, do release the monies currently held by them:
(a)firstly, to discharge all arrears with respect to the children R born on … September 2002 and L born on … May 1996 with respect to school fees at C School and D School up until the date hereof and cover the fees in advance to the end of 2013;
(b)secondly, that all arrears outstanding by way of debt due to the ANZ Bank secured over the former matrimonial home be discharged;
(c)the sum of FORTY THOUSAND DOLLARS [$40,000.00] be held in an interest bearing account in the joint names of the parties’ solicitors pending further order in relation to costs;
(d)the remaining balance to be paid by way of partial property settlement and to be divided equally between the parties and paid to their respective solicitors.
The question of both parties’ costs of the Application in a Case filed by the husband on 8 May 2013 and the Response to an Application in a Case filed by the wife on 29 May 2013 are reserved to be determined on a date to be fixed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boston & Boston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1946 of 2012

Mr Boston

Applicant

And

Ms Boston

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have before me today the adjourned hearing of the Application in a Case filed by the husband on 8 May 2013 which sets out the orders formerly sought…

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 BOSTON & BOSTON

Details

AGLC: BOSTON & BOSTON [2013] FamCA 439
Case: [2013] FamCA 439
Decision Date: 31 May 2013

CaseChat Overview and Summary

In *Boston & Boston*, Dawe J considered applications by both the father and the mother concerning their children and property. The father sought orders permitting him to take their child on an overseas holiday during the July 2013 school holidays, which the mother opposed. The mother, in turn, sought interim property orders for the discharge of school fees and outstanding loan arrears on the former matrimonial home, followed by a division of the remaining proceeds.

The court was required to determine whether to grant the father's application for the child to travel overseas, considering the paramountcy of the child's best interests and the lack of information regarding travel funding. Additionally, the court had to decide on the mother's application for interim property orders, specifically concerning the payment of school fees, loan arrears, and the distribution of the remaining funds from the former matrimonial home.

Regarding the overseas travel, the court declined to make an order allowing the child to travel with the father to Switzerland at that time, citing a lack of sufficient information. In relation to the property matters, Dawe J made orders directing B Accountants to release funds to discharge all arrears and advance school fees for both children, and to pay off outstanding ANZ Bank loan arrears secured over the former matrimonial home. A sum of $40,000 was to be held in an interest-bearing account pending further order regarding costs, with the remaining balance to be divided equally between the parties as a partial property settlement. The question of costs for the applications was reserved.

Orders

Orders of the court

Upon noting the Court declines to make an order in relation to:

(a) the sale of the former matrimonial home; and

(b) the child R travelling overseas with the husband to Switzerland at this time.

B Accountants, do release the monies currently held by them:

(a) firstly, to discharge all arrears with respect to the children R born on … September 2002 and L born on … May 1996 with respect to school fees at C School and D School up until the date hereof and cover the fees in advance to the end of 2013;

(b) secondly, that all arrears outstanding by way of debt due to the ANZ Bank secured over the former matrimonial home be discharged;

(c) the sum of FORTY THOUSAND DOLLARS [$40,000.00] be held in an interest bearing account in the joint names of the parties’ solicitors pending further order in relation to costs;

(d) the remaining balance to be paid by way of partial property settlement and to be divided equally between the parties and paid to their respective solicitors.

The question of both parties’ costs of the Application in a Case filed by the husband on 8 May 2013 and the Response to an Application in a Case filed by the wife on 29 May 2013 are reserved to be determined on a date to be fixed.

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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