BURLEY & GOODING - [2019] FCCA 151

FEDERAL CIRCUIT COURT OF AUSTRALIA

BURLEY & GOODING

[2019] FCCA 151

Catchwords:
FAMILY LAW – Parenting – where children should live – equal shared care – final orders made.

FAMILY LAW – Property – contributions – section 75(2) factors – final orders made.

Legislation:

Evidence Act 1995 (Cth), s.140

Family Law Act 1975 (Cth), Pt. VIIA, ss.60CC(2), 60CC(3), 60CC(3)(b), 60CC(3)(c), 60CC(3)(i), 65DAA, 75(2)(o), 79, 79(2), 79(4)

Cases cited:

C v C [1998] FamCA 143
Grier & Malphas [2016] FamCAFC 84
Hall and Hall
Kouper & Kouper(No.3) [2009] FamCA 1080
AJO & GRO [2005] FamCA 195
Stanford v Stanford [2012] HCA 52

Applicant:

MR BURLEY

Respondent:

MS GOODING

File Number:

MLC 1617 of 2018

Judgment of:

Judge Stewart

Hearing dates:

15 & 16 November 2018, 13 December 2018

Date of Last Submission:

13 December 2019

Delivered at:

Melbourne

Delivered on:

29 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

Morrison & Sawers

Counsel for the Respondent:

Mr A. Combes

Solicitors for the Respondent:

Orman Solicitors

ORDERS

All previous parenting orders be discharged.
The Husband and Wife have equal shared parental responsibility for the children Y born … 2013 and X born … 2014.
During school terms, the children live with the Husband and the Wife on a week-about basis, from after school/kindergarten (or 3.30pm) on Friday until the conclusion of school/kindergarten (or 3.30pm) on Friday the following week.
Notwithstanding the orders for the children to live with the parties pursuant to order 3 hereof, the Husband spend time with the children as follows:-
(a)at Christmas:-
(i)from 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2019 and each alternate year thereafter; and
(ii)from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2020 and each alternate year thereafter;
(b)on the Father’s Day weekend in each year from 6.00pm on the Saturday preceding Father’s Day until 6.00pm on Father’s Day in the event that the Husband is not otherwise spending time with the children;
(c)on the Husband’s birthday and the children’s birthdays if the Husband is not otherwise spending time with the children at times to be agreed and failing agreement:-
(i)for a period of at least 3 hours if a school/kindergarten day, from after school/kindergarten until 7.00pm; and
(ii)for a period of at least 5 hours if a weekend, from 11.00am until 4.00pm;
(d)by telephone, Skype or other like electronic communication:-
(i)on Tuesdays and Thursdays between 7.00pm and 7.30pm when the children are not otherwise in the Husband’s care; and
(ii)at any other time reasonably requested by the children or either of them; and
(e)such further or other times as may be agreed between the parties from time to time.
Notwithstanding order 3 hereof, the Wife spend further time with the children as follows:-
(a)at Christmas:-
(i)from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2019 and each alternate year thereafter; and
(ii)from 3.00pm on Christmas Day to 6.00pm on Boxing Day in 2020 and each alternate year thereafter;
(b)on 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 BURLEY & GOODING

Details

AGLC: BURLEY & GOODING [2019] FCCA 151
Case: [2019] FCCA 151
Decision Date: 29 January 2019

CaseChat Overview and Summary

This matter concerned parenting arrangements and property division between the Husband and Wife, with the Honourable Judge Stewart presiding. The dispute involved determining the living arrangements for the parties' two children, Y and X, and how their combined assets and financial resources should be divided.

The court was required to determine the most appropriate parenting orders for the children, specifically addressing issues of equal shared parental responsibility and the children's living arrangements, including specific time arrangements for each parent. Additionally, the court needed to make final orders regarding the division of the parties' property, considering their respective contributions and the factors outlined in section 75(2) of the *Family Law Act 1975*.

In relation to parenting, the court ordered that the Husband and Wife have equal shared parental responsibility and that the children live with each parent on a week-about basis during school terms. Specific provisions were made for holiday periods, birthdays, and communication, including telephone and electronic contact. The court also made orders regarding the children's schooling and the exchange of information between the parties concerning the children's welfare and education. For property division, the court made orders for the parties to retain specific properties, with the Wife to retain the remaining proceeds of sale from another property. A payment was ordered from the Husband to the Wife, and a ride-on lawnmower was to be returned. Furthermore, the court made orders concerning the division of superannuation interests, with a specific amount to be allocated to the Husband from the Wife's fund, and detailed provisions for the Trustee of the fund to implement these orders. The court also noted that upon the commencement of Grade 1 for one of the children, the parties should aim to divide the long summer holidays equally, and that the Superannuation Fund Trustee had no objection to the superannuation splitting order.

Orders

Orders of the court

All previous parenting orders be discharged.

The Husband and Wife have equal shared parental responsibility for the children Y born … 2013 and X born … 2014.

During school terms, the children live with the Husband and the Wife on a week-about basis, from after school/kindergarten (or 3.30pm) on Friday until the conclusion of school/kindergarten (or 3.30pm) on Friday the following week.

Notwithstanding the orders for the children to live with the parties pursuant to order 3 hereof, the Husband spend time with the children as follows:-

(a) at Christmas:-

(i) from 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2019 and each alternate year thereafter; and

(ii) from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2020 and each alternate year thereafter;

(b) on the Father’s Day weekend in each year from 6.00pm on the Saturday preceding Father’s Day until 6.00pm on Father’s Day in the event that the Husband is not otherwise spending time with the children;

(c) on the Husband’s birthday and the children’s birthdays if the Husband is not otherwise spending time with the children at times to be agreed and failing agreement:-

(i) for a period of at least 3 hours if a school/kindergarten day, from after school/kindergarten until 7.00pm; and

(ii) for a period of at least 5 hours if a weekend, from 11.00am until 4.00pm;

(d) by telephone, Skype or other like electronic communication:-

(i) on Tuesdays and Thursdays between 7.00pm and 7.30pm when the children are not otherwise in the Husband’s care; and

(ii) at any other time reasonably requested by the children or either of them; and

(e) such further or other times as may be agreed between the parties from time to time.

Notwithstanding order 3 hereof, the Wife spend further time with the children as follows:-

(a) at Christmas:-

(i) from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2019 and each alternate year thereafter; and

(ii) from 3.00pm on Christmas Day to 6.00pm on Boxing Day in 2020 and each alternate year thereafter;

(b) on the Mother’s Day weekend in each year from 6.00pm on the Saturday preceding Mother’s Day until 6.00pm on Mother’s Day in the event that the Wife is not otherwise spending time with the children;

(c) on the Wife’s birthday and the children’s birthdays if the Wife is not otherwise spending time with the children at times to be agreed and failing agreement:-

(i) for a period of at least 3 hours if a school/kindergarten day, from after school/kindergarten until 7.00pm; and

(ii) for a period of at least 5 hours if a weekend, from 11.00am until 4.00pm;

(d) by telephone, Skype or other like electronic communication:-

(i) on Tuesdays and Thursdays between 7.00pm and 7.30pm when the children are not otherwise in the Wife’s care; and

(ii) at any other time reasonably requested by the children or either of them; and

(e) such further or other times as may be agreed between the parties from time to time.

For the purposes of changeover pursuant these orders, changeovers occur at school where convenient and otherwise at an address nominated by the Wife close to her home at least seven days prior to that changeover, unless otherwise agreed between the parties in writing.

The children shall attend primary school and kindergarten in Town A.

Each of the parties:-

(a) keep the other advised at all times of the current residential address and telephone number of the children and advise the other of any change thereto within seven (7) days of such change;

(b) advise the other immediately in the event that the children or any of them suffers any serious illness or injury;

(c) authorise any medical practitioner upon which the children or any of them may attend from time to time, to communicate with the other in respect to the children’s medical condition and/or requirements;

(d) authorise all schools or childcare centres at which the children or either of them may attend, from time to time, to:-

(i) provide to the other, at the expense of the other, copies of all school reports, school notices and school photographs in relation to the children;

(ii) communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools; and

(iii) attend all school function to which parents are normally invited;

subject to any policy in relation thereto.

The Wife continue to attend upon her counsellor or such other counsellor as may be recommended and follow all reasonable and lawful directions of that counsellor until the counsellor directs that the Wife no longer need to attend.

10.

Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

11.

The Husband is to retain for his sole use and enjoyment the property situated at and known as D Street, Town A in the State of Victoria, more particularly described as Lot … in ….

12.

The Wife is to retain for her sole use and enjoyment the property situated at and known as L Street, Town E in the State of Victoria, more particularly described as Lot … in ….

13.

The Wife retain the remaining proceeds of sale of the property situated at and known as B Street, Town C, in the State of Queensland, currently held in the Orman Solicitors Trust Account.

14.

Within 60 days of the date hereof, the Husband pay to the Wife the sum of $48,575.

15.

Within 21 days of the date hereof, the Wife return the ride-on lawnmower to the Husband.

16.

Orders 17 to 20 inclusive are binding on the F Super Fund (“the Fund”).

17.

A base amount of $32,200 is allocated as required by section 90XT(4) of the Family Law Act 1975 (“the Act”) to the Husband out of the Wife’s interest in the Fund (member number …) in accordance with paragraph 90XT(1)(a) of the Act:-

(a) the Hand is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”); and

(b) the Wife’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the Wife’s interests in the fund is correspondingly reduced.

18.

The Trustee of the Fund, F Super Fund Pty Ltd (“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 Act and the Regulations the entitlement from the Husband created by clause 16 of this Order; and

(b) pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the fund.

19.

This order have effect from the operative time and the operative time is 5 business days after service of a sealed copy of this order upon the Trustee by way of prepaid post.

20.

After service of the payment split notice pursuant to rule 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 the Husband shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising his request pursuant to rule 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferrable benefits out of the Wife’s interest in the Fund to a Fund of the Husband’s choosing in accordance with rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

21.

Liberty is granted to the Trustee to apply with respect to these orders.

22.

Unless otherwise specified in these orders and save for the purpose of enforcing monies due under these or any subsequent orders:-

(a) each party be solely entitled, to the exclusion of the other, to all other property (including choses in action) in their possession as at the date of these orders;

(b) each party retain the motor vehicle currently in their respective possessions;

(d) insurance policies remain the sole property of the owner named thereon;

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(f) any joint tenancy be and is hereby expressly severed.

23.

All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

AND THE COURT NOTES THAT:

(A) Upon X commencing grade 1, it is envisaged that the parties should divide the long summer school holidays equally between them as may be agreed, but failing agreement, the time shall continue on a week-about basis.

(B) The letter from F Super Fund dated 28 June 2018 confirms that the Trustee has no objection to the Superannuation Splitting Order contained in 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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