FAMILY COURT OF AUSTRALIA
CHRISTOS & CHRISTOS [2014] FamCA 535
FAMILY LAW – CHILDREN – Best Interests – Where there is one child of the marriage – Where both parents seek orders for the child to live with them – Where the husband seeks an order for sole parental responsibility – Where there are allegations of domestic violence by both the husband and the wife towards each other – Where there are findings of domestic violence by the wife toward the child – Where there is conflict and poor communication between the parents – Where there are significant differences in the parenting styles of each parent – Where there is no real disagreement between the parents about major long term issues for the child – Where the single expert recommended that an equal time arrangement would not be effective and that the child should live with the husband – Where the single expert recommended that that the parents have equal shared parental responsibility – Orders made for the child to live with the husband and to spend substantial and significant time with the wife – Orders made for the parents to have equal shared parental responsibility for the child.
FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Where the husband and wife cohabited for twelve years – Where the husband’s financial contributions are significantly greater than the wife’s – Where the husband’s parents loaned substantial sums of money to the husband prior to and during the marriage – Where some of these loans are statute barred – Where it is found that the loans are to be accounted for as contributions rather than as liabilities of the husband – Where both parties made contributions as parents and homemakers although the wife’s contribution was greater – Where both parties are currently unemployed – Where the wife will be left in a lesser financial position than the husband but where the husband will have the financial burden of caring for the child – Where the contributions of the husband are found to be greater than the wife’s, being 70 per cent to the husband compared to 30 per cent to the wife including a 5 per cent adjustment for the wife for s75(2) factors – Where the wife seeks an order for spousal maintenance – Where the application for spousal maintenance dismissed due to failure of the wife to meet the threshold test in s72.
Family Law Act 1975 (Cth) ss 61DA, 60CC, 106A, 106B, 72, 75
Limitation Act 1969 (NSW) ss 14, 16
Dundas & Blake [2013] FamCAFC133
Ogilvie and Adams [1981] VR 1041
Af Petersens and Af Petersens (1981) FLC 91-095
Biltoft and Biltoft (1995) FLC 92-614
APPLICANT: Ms Christos
RESPONDENT: Mr Christos
INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer
FILE NUMBER: SYC 4025 of 2012
DATE DELIVERED: 27 July 2014
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Rees J
HEARING DATE: 31 March, 1, 2, and 4 April 2014 and 8, 9 and 10 July 2014
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- AGLC
- CHRISTOS & CHRISTOS [2014] FamCA 535
- Case
- [2014] FamCA 535
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child, A, in light of allegations of domestic violence by both parents towards each other, and findings of domestic violence by the wife towards the child. Further, the court had to assess the impact of significant conflict and poor communication between the parents, their differing parenting styles, and the recommendations of a single expert regarding equal time arrangements and parental responsibility. In relation to property, the court needed to determine how to account for loans from the husband's parents, some of which were statute barred, and to consider the financial contributions of each party, including their roles as parents and homemakers, as well as their current unemployment. The wife also sought spousal maintenance.
Rees J ordered that the husband and wife have equal shared parental responsibility for the child, A, and that the child live with the husband. The court also made detailed orders for the child to spend substantial and significant time with the wife, including specific arrangements for school terms, holidays, birthdays, and religious observances, along with provisions for communication and travel. In the property settlement, the court found the husband's financial contributions to be greater, accounting for loans from his parents as contributions rather than liabilities. After considering the contributions of both parties and applying a 5% adjustment for the wife under s75(2) of the Family Law Act 1975 (Cth), the court determined a 70/30 split in favour of the husband. The wife's application for spousal maintenance was dismissed as she failed to meet the threshold test under s72 of the Act. The court ordered the husband to pay a sum to the wife, transfer a motor vehicle to her, and made consequential orders regarding the former matrimonial home and other property.
Orders
Orders of the court
PARENTING
1. That all previous parenting orders in relation to A born … 2005 (‘the child”) be discharged.
2. That the husband and the wife have equal shared parental responsibility in relation to the child.
3. That the child live with the husband.
4. That, unless the husband and the wife otherwise agree in writing, the child shall spend time with the wife as follows:
4.1 during school terms, on an alternating weekly basis from the conclusion of school on Friday (or from 3:00 pm if the Friday is not a school day) until the commencement of school on Monday (or until 9:00 am if the Monday is not a school day) in one week and from the conclusion of school on Monday (or from 3:00 pm if the Monday is not a school day) to the commencement of school on Tuesday (or until 9:00 am if the Tuesday is not a school day) in the alternate week;
4.2 for one half of each school holiday period as agreed between the wife and the husband in writing or, if no agreement, for the first half in years ending in an odd number and for the second half in years ending in an even number;
4.3 in the event the child is not in the wife's care on Mother's Day, from 10.00 am on Mother's Day to the commencement of school the following day or until 10.00 am on the following day if the following day is a non-school day;
4.4 in the event that the child is not in the wife's care on the child’s birthday, from the conclusion of school until 7:00 pm if the child’s birthday falls on a school day and from 9:00 am until 2:00 pm if her birthday falls on a non-school day; and
4.5 at such other times as agreed between the wife and the husband in writing.
5. That in the event that Father's Day is on a day when the child would not be living with the husband then the time that the child is with the wife is suspended from 10.00 am on Father's Day to the commencement of school the following day or until 10.00 am on the following day if the following day is a non-school day.
6. That, in the event that the child is in the wife’s care on the child’s birthday, she shall spend time with the husband on that day from the conclusion of school until 7:00 pm if the child’s birthday falls on a school day and from 9:00 am until 2:00 pm if her birthday falls on a non school day
7. That for the purpose of the child having time with both parents during the Christmas period, Order 4.2 is suspended from 5:00 pm on 24 December until 5:00 pm on 25 December and the child shall spend time with the parent whose care she would not otherwise be in.
8. That the child spend time with the wife and the husband during the Orthodox Easter period on an alternate year basis, such time to be agreed between the wife and the husband in writing and, if no agreement as follows:
8.1. in years ending with an odd number:
8.1.1. with the husband from after school (or 3:00 pm if a non-school day) on the day before the Orthodox Good Friday until 3:00 pm on the Easter Saturday; and
8.1.2. with the wife from 3:00 pm on the Easter Saturday until 9:00 am (or the commencement of school if a school day) on the Orthodox Easter Monday; and
8.2. in years ending with an even number:
8.2.1. with the wife from after school (or 3:00 pm if a non-school day) on the day before the Orthodox Good Friday until 3:00 pm on the Easter Saturday; and
8.2.2. with the husband from 3:00 pm on the Easter Saturday until 9:00 am (or the commencement of school if a school day) on the Orthodox Easter Monday.
9. That where changeover does not occur at the commencement or conclusion of a school day, the parent who has the child in their care at the time of changeover shall ensure that the child is delivered to the other parent's residence at the commencement of the child’s time with that parent.
10. That during school term the child shall communicate with the wife via Skype or telephone at a minimum of once per week.
11. That during school holiday periods the child shall communicate with the parent she is not in the care of via Skype or telephone at a minimum of once per week.
12. That the wife and the husband are hereby restrained by injunction from:
12.1 denigrating the other parent; and
12.2 discussing these proceedings or the contents of any court documents
in the child's presence or hearing.
13. That either parent be at liberty to apply for a passport or passport renewal for the child and the other parent shall not withhold their consent or signature unreasonably.
14. That for periods of time when the child's passport is not being used for travel purposes the husband shall retain the child's passport and the husband shall, subject to compliance with the following orders, provide the passport to the wife at the times that the wife proposes to travel overseas with the child.
15. That either parent be at liberty to travel overseas with the child during periods of time that the child is in their care in accordance with this order, subject to the following:
15.1 the travelling parent shall provide the other parent with at least 42 days notice in writing of their intention to travel, including but not limited to an itinerary and contact details for where the child will be staying while overseas;
15.2 the travelling parent shall provide the other parent, at least 28 days before departure, with a copy of the e-tickets or other travel document confirming the flights are paid for and confirming a return date for the child to Australia; and
15.3 the travelling parent ensures that the child communicates with the other parent by phone or Skype (or a similar form of face to face communication) at a minimum once per week while the child is away.
16. That the wife and the husband keep the other informed at all times of their current residential address, landline telephone number for that address, email address and mobile telephone number.
17. That, unless the wife and the husband otherwise agree in writing, the child shall continue her schooling at S School until the conclusion of her HSC Studies.
18. That the wife and the husband do all acts and things and sign all documents necessary to ensure that the child's school is authorised to send to both parents a copy of all newsletters, notices, reports and documents normally sent to a parent of a student at that school.
19. That the wife and the husband inform each other as soon as practicable of any medical injury or illness suffered by the child whilst she is in that party's care.
20. That the wife and the husband keep the other informed at all times as to all medical, dental or health related treatment being undertaken by the child and the identity of the treating professionals and shall forthwith give such authority whether written or oral as is required to permit the other to communicate directly with that treating professional concerning the child's treatment and shall forthwith after the appointment has been made notify the other of all appointments with any such treating professional.
21. That, within 14 days, the husband shall nominate three medical practices in the Suburb M area that bulk bill and the wife shall choose one of those practices and notify the husband of her choice, in writing, within 14 days of having received the nominations. Thereafter, the wife and the husband shall use that medical practice when the child needs to attend upon a general medical practitioner, except in the case of emergencies.
22. That the wife and the husband pay equally the professional costs and disbursements of the Independent Children’s Lawyer in the total sum of $16,148, being $8,074 each less any amount either party has already paid towards the costs of the Independent Children’s Lawyer, such payment to be made simultaneously with the payment referred to in Order 24.
23. That Legal Aid New South Wales be authorised to pay the sum of $750 plus GST to Dr L from the amount of $2,000 held in the Legal Aid New South Wales trust account, such payment being for Dr L’s account for reading time and giving evidence.
PROPERTY
24. That at the expiration of two months from the date of these Orders the husband pay to the wife or as she may direct the sum of $769,082 less 50 per cent of the costs of the single experts’ fees paid by the husband.
25. That the husband shall sign all documents, ownership and registration papers and do all acts and things so as to transfer to the wife free of encumbrance the motor vehicle registered number ….
26. That simultaneously with compliance by the husband with Order 24 above, the wife shall:
26.1. vacate the former matrimonial home leaving the home in good condition and repair; and
26.2. leave in the former matrimonial home the items listed in schedule “A” hereto which shall be retained by the husband and which the wife shall leave in good condition and repair.
27. For the purpose of compliance by the wife with Order 26 hereof, not less than seven (7) days prior to the payment by the husband referred to at Order 24 hereof, the husband shall be at liberty to undertake an inspection of the former matrimonial home for any damage to the home or to the Items listed in Schedule “A” hereto. Other than as is provided by these Orders, the wife is declared to be the owner of all other property, including her entitlements to superannuation, in her possession, custody or control as at the date of these Orders.
28. Other than as is provided by these Orders, the husband is declared to be the owner of all other property, including his entitlements to superannuation, in his possession, custody or control as at the date of these Orders.
29. That in the event that the husband does not make the payment referred to in Order 24 by the due date, then the husband shall do all acts and things required to sell the property at Q Street, Suburb M (“Suburb M”) and to pay to the wife the sum specified in Order 24 together with interest at the rate prescribed by the Family Law Rules, from the due date until the date of payment.
30. That until the payment to the wife of the sums due to her pursuant to these Orders, the husband is restrained from encumbering or disposing of Suburb M except for the purpose of complying with these Orders.
31. Pursuant to s106A of the Family Law Act 1975 (Cth) the Registrar of the Family Court of Australia at Sydney is hereby appointed to execute all Deeds and documents in the name of the person to whom the direction is given and to do all acts and things necessary to give validity and operation to all such deeds and documents so as to give effect of these Orders.
SCHEDULE “A”
The following items owned by the Husband prior to the parties’ marriage and presently located in the former matrimonial home:
· The bed located in the husband’s former bedroom
· The wardrobe in the husband’s former bedroom
· coffee table
· kitchen table
· Dining table and chairs and wall units
· display cabinet
· Crystal glasses and fine cutlery and plates located in the dining room
· washing machine and dryer
· Large mirror with frame located in the entryway to the home
· Crystal glass vase located in the entryway to the home
· 10 Crystal flowers located in the entryway to the home
· pot located in the entryway to the home
· table located in the entryway to the home
The following items acquired during cohabitation and presently located in the former matrimonial home:
· 50 per cent of the kitchen utensils
· camera
· Garden hose
· Long extension cord located in the garage
· Garden tools
· The lounge located in the television room
· A's bed and cupboards
· 50 per cent of the doonas and linen,
· Cupboard in the husband’s former bedroom
· The older of the two televisions
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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