FEDERAL CIRCUIT COURT OF AUSTRALIA
BRIGHAM & SCHIRMER [2019] FCCA 92
Catchwords:
FAMILY LAW – Parenting – discrete parenting issue to be determined – where the mother opposes equal time – no risk of harm – where the children are 14 & 16 years of age – where the mother emphasises the children’s wishes – equal time ordered.FAMILY LAW – Property – where each party seeks orders for a property distribution after the breakdown of their marriage – where the father’s initial contribution assisted the parties in obtaining the former matrimonial home – where parties agree that the former matrimonial home should be sold – where there was a valuation issue in relation to the husband’s interest in a partnership – where the wife received an interim lump sum payment – where the wife asserts that this interim lump sum payment should not be treated as an addback – where final property orders are just and equitable.
Legislation:
Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 75, 79, 80, 81, 117
Cases cited:
A & A the Child Representative (1998) 22 Fam LR 756
In the Marriage of Omacini (2005) 33 Fam LR 134
Browne & Green (1999) 25 Fam LR 482
Bevan & Bevan [2013] FamCAFC 116
Bondelmonte v Bondelmonte [2017] HCA 8
C & C (2005) FLC 93-220
Chapman & Chapman [2014] FamCAFC 91
Chorn and Hopkins [2004] FamCA 633; (2004) FLC 93-204
Coghlan & Coghlan (2005) FLC 93-220
Fane-Thompson v Fane-Thompson (1981) FLC 91-053
Farnell & Farnell (1996) FLC 92-681
Fielding and Nichol [2014] FCWA 77
G & G [2000] FamCA 1075
Giles & Giles & Anor [2018] FCCA 194
Gillard & Gillard [2015] FamCAFC 169
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2006) 36 Fam LR 422
Hearne & Hearne [2015] FamCAFC 178
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
In the Marriage of Burke (1981) FLC 91-055
In the Marriage of Crapp and Crapp (No.2) [1979] FamCA 17; (1979) 5 Fam LR 47; (1979) FLC 90-615
In the Marriage of Geyl 7 Fam LR 219
In the Marriage of Omacini (2005) 33 Fam LR 134
Jollie & Dysart [2014] FamCAFC 149
JEL & DDF (2001) FLC 93,075
Kowaliw & Kowaliw (1981) FLC 91-092
Kowalski and Kowalski (1993) FLC 92-342
Marker & Marker [1998] FamCA 42
Manolis & Manolis (No.2) [2011] FamCAFC 105
NHC & RCH (2004) FLC 93-204
Norbis v Norbis (1986) 161 CLR 513
Norman & Norman [2010] FamCAFC 66
Pierce & Pierce (1999) FLC 92-844
R & R: Children’s Wishes (2000) FLC 93-000
In the marriage of R (Children’s Wishes) (2002) FLC 93-108
Rockman & Rockman [2014] FCCA 1966
R & C [1993] FamCA 62
S & S [2004] FamCA 201
Stanford & Stanford [2012] HCA 52
Trevi & Trevi [2018] FamCAFC 173
Townsend & Townsend [1994] FamCA 144
Wardman & Hudson (1978) FLC 90-466
Wells & Wells (1977) FLC 90-285
Winnel & Winnel (1984)…
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- AGLC
- BRIGHAM & SCHIRMER [2019] FCCA 92
- Case
- [2019] FCCA 92
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether an equal time arrangement for the children was in their best interests, notwithstanding the mother's opposition and her reliance on the children's stated wishes, given there was no identified risk of harm. In relation to property, the court needed to make just and equitable orders for the distribution of the parties' assets, considering the father's initial contribution to the acquisition of the former matrimonial home, the valuation of the father's partnership interest, and the treatment of the wife's interim lump sum payment.
On the parenting issue, the court ordered equal shared parental responsibility and an equal time arrangement for the children, finding it appropriate despite the mother's opposition and her emphasis on the children's wishes, as there was no risk of harm identified. The court also made detailed orders regarding the day-to-day care of the children, school holiday arrangements, special occasions, communication between parents and children, and the handling of passports and international travel. For the property division, the court ordered the sale of the former matrimonial home and detailed the disbursement of the proceeds. The net proceeds were to be divided such that the mother received 46% of the total net assets (including the net proceeds of sale), and the father received the remainder. The mother was granted exclusive use and occupation of the former matrimonial home pending its sale and was to receive spousal maintenance of $500 per week. The parties were to retain their respective chattels, vehicles, bank accounts, shares, superannuation, and employment benefits, except as otherwise provided.
Orders
Orders of the court
A. Parenting
THE COURT ORDERS BY CONSENT:
(1) That the parties have equal shared parental responsibility for the long-term care, welfare and development of the children, [X] born … 2002 and [Y] (“[Y]”) born … 2004 (collectively “the children”).
(2) The mother shall have sole responsibility for making decisions of a day-to-day nature for the children when the children are in her care.
(3) The father shall have sole responsibility for making decisions of a day-to-day nature for the children when the children are in his care.
THE COURT ORDERS ON A FINAL BASIS:
(4) That the children shall live with the parties on an equal time arrangement as follows:
(a) During school terms on a week about basis as follows:
(i) Week 1: the Father from after school Monday, or 6pm in the event of a non-school day, to the commencement of school the following Monday, or 6pm in the event of a non-school day, and thereafter each alternate week, commencing from 4 February 2019.
(ii) Week 2: with the Mother after school Monday, or 6pm in the event of a non-school day, to the commencement of school the following Monday, or 6pm in the event of a non-school day, and thereafter each alternate week.
(b) The parties may adjust or vary the arrangements specified in this order at any time by agreement in writing.
(5) That except as otherwise provided by these Orders, on occasions when a changeover does not occur at school the parent with whom the children are to be spending time with shall collect the children from the residence of the other parent at the commencement of their time.
School holiday arrangements & special occasions
(6) That notwithstanding any other Order, during the school holiday periods at the end of Terms 1, 2 and 3 and during each such school holiday period the children shall spend time with the parties as agreed between them in writing but failing agreement:
(a) In even numbered years - with the mother for the first half and with the father in the second half; and
(b) In odd numbered years – with the father in the first half and with the mother in the second half.
(7) That notwithstanding any other order, during each Christmas school holiday period the children shall spend time with the parties as agreed between them in writing but failing agreement:
(a) In even numbered years:
(i) With the mother from 5pm on the last day of the school term until 12pm on 24 December;
(ii) With the father from 12pm on 24 December until 5pm on 1 January;
(iii) With the mother from 5pm on 1 January until 5pm on 14 January;
(iv) With the father for the remainder of the Christmas school holiday period; and
(v) For the purpose of changeover, the parent with whom the children are to be spending time with shall collect the children from the residence of the other parent at the commencement of their time.
(b) In odd numbered years:
(i) With the father from 5pm on the last day of the school term until 12pm on 24 December;
(ii) With the mother from 12pm on 24 December until 5pm on 1 January;
(iii) With the father from 5pm on 1 January until 5pm on 14 January;
(iv) With the mother for the remainder of the Christmas school holiday period; and
(v) For the purpose of changeover, the parent with whom the children are to be spending time with shall collect the children from the residence of the other parent at the commencement of their time.
THE COURT FURTHER ORDERS BY CONSENT
Easter period
(c) in the event that Easter falls outside the school holidays:
(i) in even numbered years – with the father from 5pm on Holy Thursday until 5pm on Easter Monday; and
(ii) in odd numbered years – with the mother from 5pm on Holy Thursday until 5pm on Easter Monday.
(d) in the event that Easter falls inside the school holidays:
(i) In 2019 - with the mother from 5pm on Holy Thursday until 5pm on Easter Monday.
(ii) In 2020 - with the father from 5pm on Holy Thursday until 5pm on Easter Monday.
Birthdays
(e) On each of the children’s birthdays the children shall spend time with the parent that they would not otherwise wake up with for a period of four (4) hours as agreed and failing agreement from 4pm until 8pm.
Interpretation
(8) For the purposes of these orders:
(a) school holiday periods shall commence at 5pm on the last day of school which the children are required by the school to attend for the school term;
(b) school holiday periods shall conclude at 5 pm on the last day of the New South Wales school holiday period;
(c) where there is an odd number of days in the school holidays, the mid-point of the holiday periods occurring at the end of Terms 1, 2 and 3 shall be taken to be 12pm on the middle Saturday of the period;
(d) where there is an even number of days in the school holidays, the mid-point of the holiday periods occurring at the end of Terms 1, 2 and 3 shall be taken to be 7pm on the middle Saturday of the period;
Communication
(9) That the parties permit and provide all necessary assistance to enable the children to communicate with the party not caring for the children as follows:
(a) Mobile telephone calls between the children and the father or the children and the mother regularly including, unless otherwise agreed, once per day between 7:30 pm and 8:00 pm or at another convenient time as agreed between the parties;
(b) Emails from the father to the mother’s email address or as she may otherwise direct in writing; and
(c) Emails from the mother to the father’s email address or as he may otherwise direct in writing.
(10) Either party may communicate with the children by telephone, email, skype, letter, card, text and/or gift at all reasonable times and with reasonable frequency and to include, but not be limited to, telephone communication on either party’s birthday, the children’s birthdays, Christmas Day or as may otherwise be agreed between the parties.
(11) Neither party is to denigrate the other party, their family or any other person with whom that party may live in a bona fide domestic relationship within the presence or hearing of either child, or allow either child to remain in the presence or hearing of any person who is denigrating either the party, their family or any other person with whom they may be living in a bona fide domestic relationship.
(12) That each of the parties will notify the other party as soon as practicable in the event of either of the children experiencing a serious injury or illness, or being hospitalised while in either party’s care. This includes giving sufficient details to enable both parties to be consulted with respect to and being fully advised regarding such illness or condition and any treatment recommended or provided and also to visit the children if hospitalised.
(13) The children’s passports, and any subsequent renewal passports, shall be retained at all times by the mother, save when the children are travelling with the father, until each of the children attain the age of 18 years. The parties agree that they will be equally responsible for all costs and fees associated with all new passports to be issued to the children either at the request of the father or the mother, and the parties agree that they will reimburse any fees incurred by the other party within seven (7) days of being provided by the other party with proof of payment of such fees.
(14) That in the event either child requires his or her passport to be renewed, the parties will do all acts and things and sign all documents to obtain the new passport and in doing so:
(a) The mother will in the first instance obtain and complete the application and thereafter provide it to the father;
(b) Within seven (7) days of receiving the application from the mother, the father will complete any details required of him in the said application, sign the said application and return it to the mother together with one half of the fee payable for the lodgement of the application;
(c) Within seven (7) days of receiving the application completed and signed by the father, the mother will lodge the completed application with the Passport Office and pay the applicable lodgement fee and advise the father of the lodgement within 24 hours; and
(d) Within two (2) days of the mother receiving the passport for either child, the mother will provide a copy of the same to the father.
(15) That either party be permitted to take the children out of Australia for holidays upon the other parent providing written consent (with such consent to not be unreasonably withheld) and in doing so:
(a) Unless otherwise agreed such travel is limited to countries that are signatories to the Hague Convention on the Civil aspects of Child Abduction;
(b) Such travel shall only take place during school holiday periods, and during the children’s time with the travelling party during the school holidays;
(c) Each party will give the other party as much notification as possible of their intention to take the children out of Australia and in any event will give not less than thirty (30) days written notice of such intention unless in the case of an emergency;
(d) The travelling party shall furnish to the other party an itinerary for the children’s travel, including the departure and return dates, the state or country or countries (including cities) the children will be travelling to, the approximate dates on which the children will arrive or depart each state or country (including cities) and a telephone number and address at which the children can be contacted in each state or country (including cities); and
(e) During the times the children are travelling, the travelling party will ensure that the children communicate with the other party by telephone at no less frequency than every two (2) days, with the travelling party to telephone the other party on a telephone number nominated by the party that is not travelling at times as agreed between them.
(16) Each party shall do all acts and things and sign all necessary documents to authorise and direct any school attended by the children to discuss with each party the children’s attendance and progress, and to furnish reports and copies of any correspondence, photographs, newsletters or other written material relating to the children specifically produced by the school to each party.
(17) The parties shall be entitled to fully participate in all and any parent/student activities at the school connected with same. In this regard, the parties will use their best endeavours to give each other reasonable advance notice if either party is intending to attend such an activity. Both parties are to do all things to ensure that that they are kept up to date with school events by reading notices, activity emails and other information to which they have access including but not limited to activity emails.
(18) Each party is to keep the other informed of their current residential address, a landline and mobile number and email address and will advise the other Party of any change to those details at least seven (7) days prior to any change in residential addresses and within twenty-four (24) hours of any changes to telephone numbers and email addresses.
B. Property
(19) For the purposes of the following orders:
(a) The agreed value of Property A (hereinafter referred to as the Property A home) is $2,360,000;
(b) The value of the parties’ net assets is $1,285,663, excluding the value of the Property A home (“value of parties’ net assets”).
(20) That within 30 days of these orders the Father do all acts and things and sign all necessary documents to list the property known as and situate at Property A (hereinafter referred to as the Property A home) for sale by public auction with an agent determined by him in accordance with the following sub-clauses:
(a) The Father shall notify the Mother of the Agent he has appointed and provide her with a copy of the Agency Agreement within 24 hours of executing the said Agreement – (for the purposes of this Order the Father proposes Real Estate at Suburb B. The Father also proposes Conveyancing at Suburb B to act on the sale);
(b) The Father shall instruct the Agent to conduct an initial inspection of the property for the purposes of providing the parties with an opinion as to any work and/or maintenance and/or improvements to be carried out to the property to enable the property to achieve a higher selling price and for the purposes of this Order the Mother shall make the property available for inspection by the Agent at any reasonable time as may be requested by the Agent;
(c) The Father will do all such things and sign all documents so as to authorise the auctioneer to sell the property by auction for the best price reasonably obtainable and the auction period shall be not less than 8 weeks from the date of the Agency Agreement is signed by the Father and not later than 16 weeks from the date the Agency Agreement is signed by the Father unless otherwise determined by the real estate agent and the Father shall inform the Mother as to the date of the Auction;
(d) The Father shall be responsible for meeting any upfront costs of the Agent and/or Auctioneer and shall be reimbursed one half of such costs from the proceeds of sale as provided for in these Orders;
(e) The Father shall nominate a reserve price 10 days prior to the auction after consultation with the agent as to the market value of the property, and notification to the Mother, and adopt the market value advised by the agent as the reserved price; and
(f) The Father shall provide all necessary directions and instructions to cause the proceeds of sale, as may be held by the Agent, to be disbursed in accordance with these Orders.
(21) That in the event the property fails to sell at the auction or within 72 hours following the auction that the property immediately be listed for sale by private treaty at a list price as nominated by the Father in accordance with the recommendations of the Agent and not less than 5% below the reserve price at the auction.
(22) That upon completion of the sale of the property in accordance with these Orders the Father shall do all acts and things and execute all documents necessary to cause the proceeds of sale to be paid as follows:-
(a) The payment of all agents commission and auctioneer expenses (if any) and solicitors/conveyancers costs referrable to the sale;
(b) The payment of all adjustments of municipal and water rates;
(c) The payment to the Father of one half of the costs paid by him in relation to any upfront agent’s expenses in accordance with Order (20)(d) above;
(d) In payment of the balance then remaining (“net balance”):
(i) to the Mother, 46% of the total amount of the value of the parties’ net assets plus the net balance;
(ii) the remainder to the Father.
(23) That pending the settlement of the sale of the Property A property the Mother shall have the exclusive use and occupation of same.
(24) In the event that the Property A property is placed on the market to be sold then pending the payment in Order 24(d) herein, the father shall pay to the mother or as she directs the sum of $500 each week by way of spousal maintenance commencing within 7 days of the date of these orders.
(25) That except as otherwise provided for herein, the mother shall retain, to the exclusion of the father:
(a) All furniture, jewellery and other chattels currently in her possession, custody or control;
(b) Any motor vehicle registered in her name;
(c) Any funds standing to her credit in any Bank, Credit Union or Building Society account;
(d) Any shares in any public or private company;
(e) Any superannuation fund in which she has an entitlement;
(f) All and any leave or long service, or any other employment benefits or entitlements.
(26) That except as otherwise provided for herein, the father shall retain, to the exclusion of the mother.
(a) All furniture, jewellery and other chattels currently in his possession, custody or control;
(b) Any motor vehicle registered in his name;
(c) Any funds standing to his credit in any Bank, Credit Union or Building Society account;
(d) Any shares in any public or private company;
(e) Any superannuation fund in which he has an entitlement;
(f) All and any leave or long service, or any other employment benefits or entitlements.
(27) If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
THE COURT NOTES THAT:
A. Any application as to costs will be dealt with by way of written submissions, unless the parties request to be heard orally.
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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