Carlisle and Carlisle - [2017] FCCA 1956

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARLISLE & CARLISLE

[2017] FCCA 1956

Catchwords:
FAMILY LAW – Parenting – property.

Legislation:

Family Law Act 1975

Applicant:

MS CARLISLE

Respondent:

MR CARLISLE

File Number:

SYC 431 of 2017

Judgment of:

Judge Henderson

Hearing date:

27 July 2017

Date of Last Submission:

27 July 2017

Delivered at:

Sydney

Delivered on:

3 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Hamish Cumming Family Lawyers

Counsel for the Respondent:

Mr Livingstone

Solicitors for the Respondent:

Lorne Havenstein Lawyer

Counsel for the Independent Children's Lawyer:

Mr Christaki

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Sydney Central Family Law

ORDERS

Parenting

Order 2 of the interim consent orders made 7 March 2017 be discharged.

The children X, born (omitted) 2008, and Y, born (omitted) 2012 (“the children”) spend time with the father:
a.Each Wednesday from the conclusion of school to 7:30pm that day, with the father to return the child to the mother’s home.
b.By consent, from 10am Saturday 29 July 2017 until before school Monday 31 July 2017, and each alternate weekend thereafter;

BY CONSENT:

From the commencement of Term 4 2017 from the conclusion of school on Friday, or 3pm in the event of a non-school day, to the commencement of school on Monday, or 9am in the event of a non-school day;
Half of the school holidays at the conclusion of Term 3 2017 as follows:
a. Block period of 4 nights being from 9am on the first Monday to 5 pm of the following Friday: and
b. Block period of 3 nights being from 9am on the second Thursday to 5pm on the following Sunday.
During the school holidays at the conclusion of Term 4 for three block periods of 5 days such block not to be concurrent with each other and for the following periods:-
a. From 9am on 16 December to 5pm 21 December 2017;
b. From 2pm on 2 January to 5pm on 7 January 2018; and

c. From 9am to 15 January to 5pm on 20 January 2018.

From Term 1, 2018 for one week each school holiday period at the conclusion of Term 1, 2, 3 commencing from 5pm on the first Sunday to 5pm on the following Sunday.
On Father’s Day if the children are not otherwise in his care, from 6pm on the Saturday preceding Father’s Day Sunday until the commencement on school on the following Monday.
On the Father’s birthday, (omitted) 2017 if the children are not otherwise in his care, from 6pm on (omitted) at 4pm.
At Christmas 2017 from 2pm Christmas Day until 2pm Boxing Day.

10.If the children are not otherwise in the Mother’s care on Mother’s Day weekend the time in paragraph 2(a) above will be suspended from 6pm on the Saturday preceding Mother’s Day until the commencement of school the following Monday
11.Each parent do all acts and thing necessary to facilitate communication between the children and the father each Thursday between the hours…

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.

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Details

Case: [2017] FCCA 1956
Decision Date: 3 August 2017

CaseChat Overview and Summary

This matter concerned parenting arrangements and property division between the parties, Mr and Mrs Carlisle, before Judge Henderson. The dispute involved the allocation of time the parties' two children would spend with each parent, and the sale and distribution of proceeds from their jointly owned property.

The court was required to determine the specific parenting orders for the children, X and Y, including regular time, school holiday arrangements, and special occasions. Additionally, the court needed to establish a clear process for the sale of the parties' property, including listing, pricing, and the distribution of sale proceeds. The court also addressed periodic and lump sum spouse maintenance, as well as interim costs orders for the wife.

The court made orders by consent regarding parenting, detailing specific days and times for the father's time with the children, including alternating weekends and school holidays. These orders also included provisions for communication between the children and the father, restrictions on drug and alcohol consumption in the presence of the children, and notification requirements regarding medical appointments. By consent, the court also ordered the sale of the parties' property, outlining the process for listing, sale by private treaty or auction, and the priority of payments from the proceeds, including discharge of mortgage, sale expenses, legal costs, utilities, and specified payments to each party. Periodic and lump sum spouse maintenance were also ordered, along with interim costs for the wife.

Orders

Orders of the court

Parenting

Order 2 of the interim consent orders made 7 March 2017 be discharged.

The children X, born (omitted) 2008, and Y, born (omitted) 2012 (“the children”) spend time with the father:

a. Each Wednesday from the conclusion of school to 7:30pm that day, with the father to return the child to the mother’s home.

b. By consent, from 10am Saturday 29 July 2017 until before school Monday 31 July 2017, and each alternate weekend thereafter;

BY CONSENT:

From the commencement of Term 4 2017 from the conclusion of school on Friday, or 3pm in the event of a non-school day, to the commencement of school on Monday, or 9am in the event of a non-school day;

Half of the school holidays at the conclusion of Term 3 2017 as follows:

a. Block period of 4 nights being from 9am on the first Monday to 5 pm of the following Friday: and

b. Block period of 3 nights being from 9am on the second Thursday to 5pm on the following Sunday.

During the school holidays at the conclusion of Term 4 for three block periods of 5 days such block not to be concurrent with each other and for the following periods:-

a. From 9am on 16 December to 5pm 21 December 2017;

b. From 2pm on 2 January to 5pm on 7 January 2018; and

c. From 9am to 15 January to 5pm on 20 January 2018.

From Term 1, 2018 for one week each school holiday period at the conclusion of Term 1, 2, 3 commencing from 5pm on the first Sunday to 5pm on the following Sunday.

On Father’s Day if the children are not otherwise in his care, from 6pm on the Saturday preceding Father’s Day Sunday until the commencement on school on the following Monday.

On the Father’s birthday, (omitted) 2017 if the children are not otherwise in his care, from 6pm on (omitted) at 4pm.

At Christmas 2017 from 2pm Christmas Day until 2pm Boxing Day.

10. If the children are not otherwise in the Mother’s care on Mother’s Day weekend the time in paragraph 2(a) above will be suspended from 6pm on the Saturday preceding Mother’s Day until the commencement of school the following Monday

11. Each parent do all acts and thing necessary to facilitate communication between the children and the father each Thursday between the hours of 5:30pm and 6pm commencing Thursday, 26 July 2017.

12. Each party is hereby restrained from consuming illicit drugs or alcohol over the legally prescribed concentration of alcohol (currently 0.05) in the presence of the children or within 12 hours of spending time with the children.

13. The mother notify the father of any medical or therapy appointments (including the date and time for the appointment) for either children within 24 hours of such appointment being made.

14. The mother provide to the father any medical, therapy or update reports in relation to either children within 7 days of receiving such report.

15. In the event that either of the children becomes distressed in the care of the father, the father will facilitate the children telephoning their mother.

16. The interim orders made on 7 March 2017 otherwise continue, pending further order.

Notation:

For the purposes of these orders the Father’s time with the children as provided for in orders 2(a) and 2(b) above shall be suspended during school holidays and resume on the first weekend of each school term.

Property

THE COURT ORDERS BY CONSENT:

Sale of property and interim distribution

17. That the parties forthwith do all acts and sign all documents necessary to effect the sale of the property situate at Property A in the State of New South Wales (“the Property A property”) and for that purpose the following shall apply:

a. The property shall be listed for sale by private treaty or auction (as may be recommended by the Agent) with such real estate agent as is agreed between the parties and failing agreement within forty-two (42) days from the date of these orders the real estate agent will be nominated by the president/CEO of the real estate institution at the request of the parties or either of them;

b. The list price of the property shall be an amount as agreed between the parties and failing agreement within forty-two (42) days of the date of these orders the list price will be as nominated by the real estate agent;

c. The parties are to cooperate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good condition at the time of inspection by any prospective buyer;

d. That upon agreement being reached for the sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documents forthwith upon its submission to them by the agent of their solicitor;

e. The proceeds of sale shall be paid in the following manner and priority:

i. To discharge the mortgage to (omitted) Bank;

ii. Payment of the estate agent’s commission and advertising and other expenses, if any, payable on the sale;

iii. Payment of legal costs relating to the sale;

iv. Payment of outstanding utilities and rates;

v. Payments of $100,000 to each of the parties; and

vi. The balance of the proceeds be paid to the Trust Account of Hamish Cumming Family Lawyers with such funds to remain in that account pending further Order.

18. If the Property A property is not sold by private treaty on or before six (6) months from the date of this Order than the parties shall do all acts and things as are necessary to sell the property by auction and the following shall apply:

a. The property shall be listed with an agent appointed under Order 17(a) (“the auctioneer”) for sale by auction within a further three (3) months;

b. The parties shall execute all documents requested by the auctioneer for sale of the property by auction;

c. The reserve price of the property shall be such an amount as is agreed to between the parties and failing agreement being reached between the parties twenty-one (21) prior to the auction, then the reserve price shall be nominated by the auctioneer;

d. The parties shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the parties pays all the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half such payments before any division between the parties;

e. The parties shall give instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer.

f. The parties agree to cooperate in every other way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of the auction;

g. That the parties or their nominee attend at the auction and negotiate with the highest bidder in the event of reserve price not being reached.

h. The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least ninety percent (90%) of the reserve price shall be accepted by the parties;

i. That upon agreement being reached for the sale of the property, orders 17(d) and 17(e) shall apply.

19. In the event that the property is not sold at auction or within fourteen (14) days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held within four (4) months after the date of the first auction and for that purpose the provisions of order 2 shall apply.

THE COURT FURTHER ORDERS:

20. That, pending further Order, and by way of periodic spouse maintenance pursuant to section 74 of the Family Law Act 1975, the Husband shall pay to the wife, by way of cleared funds:

a. The sum of $350 per week until such time as the Wife is required to pay market rental or until 31 December 2017, whichever is the earlier;

b. Thereafter, the sum of $900.00 per week.

21. The spouse maintenance payable by the Husband to the Wife pursuant to Order 4 shall be paid as follows;

a. Weekly on a Monday commencing on the first Monday after the date of these orders; and

b. By way of electronic funds transfer into a bank account nominated by the Wife and advised to the Husband’s solicitors in writing or as agreed.

Lump Sum Spouse Maintenance

22. That by way of lump sum spouse maintenance pursuant to section 74 of the Family Law Act 1975, the Husband shall pay to the Wife, by way of cleared funds from the net proceeds of sale:

a. The sum of $10,000 for moving costs and rental bond and rent in advance.

Interim Costs

23. The Wife be paid the sum of $50,000 for her initial costs and disbursements in relation to these proceedings from the proceeds of sale of Property A on settlement of the said sale.

24. The Wife is to receive an additional $15,000 by way of interim property orders towards the purchase of a motor vehicle.

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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