BURNS & BOSTON - [2011] FamCA 495

FAMILY COURT OF AUSTRALIA

BURNS & BOSTON

[2011] FamCA 495

FAMILY LAW - CHILDREN – With whom a child lives – With whom a child communicates

FAMILY LAW – PROPERTY SETTLEMENT

Family Law Act 1975 (Cth)

Cotton & Cotton (1983) FLC 91-330
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405
Pishke & Rupp; Bannon & Rupp [2010] FamCA 632
Tate and Tate [2000] FamCA 1040

APPLICANT:

Ms Burns

RESPONDENT:

Mr Boston

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

4823

2010

DATE DELIVERED:

27 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cantwell

SOLICITOR FOR THE APPLICANT:

Hogg and Reid

THE RESPONDENT:

No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr T Mulvany

Orders

That the wife have sole parental responsibility for the child C born … November 1998.
That C live with the wife.
That the husband be restrained from:
(a) spending time with C;
(b)communicating with C including directly by electronic and social media means.
That until 1 July 2014, should the husband wish to seek parenting orders in respect of C in the future, he be at liberty to make an ex parte application for permission to file and serve upon the wife such application for parenting orders as he is so advised and any such ex parte application shall be listed:
(a) in the Family Court of Australia at Melbourne; and
(b)before the Honourable Justice Cronin unless otherwise impracticable to do so.
That the Independent Children’s Lawyer serve a copy of these orders and the reasons for judgment upon the husband by post to the husband’s last known address (notwithstanding the husband informed the Court that he did not wish any such communication of legal documents).
That so soon as the Independent Children’s Lawyer has complied with paragraph 5 of these orders, he shall be discharged from the proceedings.
That the husband transfer to the wife all of his interest in the properties at:
(a) … H Street, N (“the N property”); and
(b) … H Street, B (“the B property”).
That the wife be responsible for and indemnify the husband in respect of the following:
(a)the National Australia Bank mortgage encumbering the N property;
(b)the National Australia Bank mortgage encumbering the B property; and
(c)the overdraft liability to the National Australia Bank secured by the mortgage encumbering the B property,
and the wife be at liberty to refinance any such liabilities and/or sell properties to give effect to these orders.
That pursuant to section 106A of the Family Law Act 1975, a registrar of the Family Court of Australia at the Melbourne Registry is forthwith authorised to sign any document in the name of the husband to give effect to these orders including but not limited to:
(a)the transfer to the wife…

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 BURNS & BOSTON

Details

AGLC: BURNS & BOSTON [2011] FamCA 495
Case: [2011] FamCA 495
Decision Date: 27 June 2011

CaseChat Overview and Summary

In the Family Court of Australia, Cronin J presided over proceedings involving a dispute between a husband and wife concerning their child, C, and the division of their property. The wife sought sole parental responsibility for C, orders for C to live with her, and specific property settlement arrangements. The husband's participation in the proceedings appears to have been limited, as evidenced by the court's orders for service on his last known address and his liberty to make future applications.

The court was required to determine the parenting arrangements for the child C, specifically whether the wife should have sole parental responsibility and for C to live with her, along with orders restraining the husband from spending time with or communicating with C. Additionally, the court had to resolve the property settlement, including the division of real estate and the allocation of various business and personal debts. The court also considered the issue of costs.

Cronin J ordered that the wife have sole parental responsibility for C, with C to live with her. The husband was restrained from spending time with or communicating with C. The court further ordered the husband to transfer his interest in two properties to the wife, who would be responsible for the associated mortgages and overdraft liability, with liberty to refinance or sell. To facilitate these property transfers, a registrar was authorised to sign documents on the husband's behalf. The husband was also ordered to be responsible for and indemnify the wife in respect of numerous specified business and personal debts, as well as any liabilities arising from companies in which he is a director and shareholder. Each party was to retain their own property and superannuation interests otherwise. The husband was ordered to pay the wife's costs fixed at $13,000, and all extant applications were dismissed.

Orders

Orders of the court

That the wife have sole parental responsibility for the child C born … November 1998.

That C live with the wife.

That the husband be restrained from:

(a) spending time with C;

(b) communicating with C including directly by electronic and social media means.

That until 1 July 2014, should the husband wish to seek parenting orders in respect of C in the future, he be at liberty to make an ex parte application for permission to file and serve upon the wife such application for parenting orders as he is so advised and any such ex parte application shall be listed:

(a) in the Family Court of Australia at Melbourne; and

(b) before the Honourable Justice Cronin unless otherwise impracticable to do so.

That the Independent Children’s Lawyer serve a copy of these orders and the reasons for judgment upon the husband by post to the husband’s last known address (notwithstanding the husband informed the Court that he did not wish any such communication of legal documents).

That so soon as the Independent Children’s Lawyer has complied with paragraph 5 of these orders, he shall be discharged from the proceedings.

That the husband transfer to the wife all of his interest in the properties at:

(a) … H Street, N (“the N property”); and

(b) … H Street, B (“the B property”).

That the wife be responsible for and indemnify the husband in respect of the following:

(a) the National Australia Bank mortgage encumbering the N property;

(b) the National Australia Bank mortgage encumbering the B property; and

and the wife be at liberty to refinance any such liabilities and/or sell properties to give effect to these orders.

That pursuant to section 106A of the Family Law Act 1975, a registrar of the Family Court of Australia at the Melbourne Registry is forthwith authorised to sign any document in the name of the husband to give effect to these orders including but not limited to:

(a) the transfer to the wife of the husband’s interest in the N property and

(b) the B property and the consequent sales or transfers of either or both of those properties; and

(c) the discharge of the liabilities to the National Australia Bank arising out of its securities encumbering the N property and the B property.

10.

That the husband be responsible for and indemnify the wife in respect of the following debts associated with the business partnership known as “[Business 1]”:

(a) Law Firm 1;

(b) Business 2;

(d) Business 3;

(e) Business 4;

(f) Business 5;

(g) Collection Agency 2;

(h) Business 6;

(i) Business 7;

(j) Business 8;

(k) Business 9;

(l) Mr A;

(m) Australian Taxation Office.

11.

That the husband be responsible for, pay and indemnify the wife in respect of, any liability arising out of any company in which the husband is a director and shareholder.

12.

That each party otherwise retain and the other relinquish any interest in, any property including any interest in any superannuation fund as a member, which that party has as at the date of these orders.

13.

That the husband pay the wife costs fixed in the sum of $13,000.

14.

That all extant applications be otherwise dismissed.

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.