Clarke & Clarke - [2008] FMCAfam 622

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLARKE & CLARKE

[2008] FMCAfam 622

FAMILY LAW – Children aged 9, 7 and 4 – planned relocation by mother of children from [W] to [C] – application of presumption of equal shared parental responsibility – father seeks shared care arrangement – necessarily such an arrangement has implications for mother’s plans to move to [C] for employment and personal reasons – allegations of family violence – mother alleges father has been violent towards her and shared care arrangement antithetic to children’s best interests – children’s entitlement to have a meaningful relationship with both parents – freedom of movement – evaluation of parties’ competing proposals – best interests.

PROPERTY – Marriage of around eight years in duration – whether monies advanced by husband’s parents to husband to purchase a property prior to relationship should be included as joint liability – assessment of contributions – s.75(2) factors – just and equitable.

Family Law Act 1975, ss.4; 60B; 60CA; 60CC; 61DA; 65D; 65DAA; 65DAC

B v B [2006] FamCA 1207 unreported judgment delivered 15 November 2006
Goode & Goode (2006) FLC 92-286
AMS v AIF; AIF v AMS (1999) FLC92-852
A v A: Relocation Approach (2000) FLC 93-035
U v U per Hayne J
KB & TC (2005) FLC 92-224
Fragomeli & Fragomeli (1993) FLC 92-393
B & B: Family Law Reform Act 1995 (1997) FLC 92-755
In the marriage of Patsalou (1994) 18 Fam LR 426
JG & BG 18 Fam LR 255
Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Kessey & Kessey (1994) FLC 92-495
Pellegrino v Pellegrino (1997) FLC 92-789
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635
D & D [2003] FamCA 473
T & N [2001] FMCAfam 222
Gosper & Gosper (1987) FLC 91-818
Aleksovski v Aleksovski (1996) FLC 92-705
Ferraro & Ferraro (1992) 16 FamLR 1

Applicant:

MR CLARKE

Respondent:

MS CLARKE

File Number:

ADC 3739 of 2007

Judgment of:

Brown FM

Hearing dates:

3 & 4 June 2008

Date of last submission:

4 June 2008

Delivered at:

Adelaide

Delivered on:

9 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr Birchall

Solicitors for the Applicant:

Hume Taylor & Co

Counsel for the Respondent:

Ms Dickson

Solicitors for the Respondent:

Camatta Lempens Pty Ltd

ORDERS

The husband and wife have equal shared parental responsibility for the children of the marriage [X] born in 1999, [Y] born in 2001 and [Z] born in 2004 (hereinafter referred to as “the children”).
The three children live with the wife and she be at liberty to relocate the children’s place of residence from [W] to [C] at the end of the mid-year 2008 South Australian school holidays.
The father spend time with the children as follows:
(a)On each alternate weekend, during school terms, from 5:00pm Friday until 5:00pm the following Sunday or 5:00pm Monday in the event…

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 Clarke & Clarke

Details

AGLC: Clarke & Clarke [2008] FMCAfam 622
Case: [2008] FMCAfam 622
Decision Date: 9 July 2008

CaseChat Overview and Summary

In the matter of Clarke and Clarke, the Family Court addressed the dispute regarding the relocation of three children by the mother and the proposed shared care arrangement sought by the father. The children, aged nine, seven, and four, were the subject of contention as the mother planned to move from [W] to [C] for employment and personal reasons. The father opposed the relocation, arguing for a shared care arrangement that would impact the mother's plans. The court was required to evaluate the competing proposals and determine the best interests of the children, considering factors such as their entitlement to maintain a meaningful relationship with both parents and the mother's allegations of family violence.

The legal issues before the court encompassed the application of the presumption of equal shared parental responsibility and the assessment of the children's best interests. The court needed to balance the father's right to a meaningful relationship with the children against the mother's desire to relocate for employment and personal reasons. Additionally, the court had to consider the allegations of family violence and their implications for the children's welfare. The evaluation of the parties' competing proposals and the best interests of the children were central to the court's decision-making process.

The court held that the children's best interests were paramount and determined that the mother could relocate with the children to [C] at the end of the mid-year 2008 South Australian school holidays. However, the father was granted substantial time with the children, including alternate weekend visits during school terms, half of all school holidays, and specific holiday periods. The court also ordered that the children be exchanged between the parties at agreed locations and that both parents have access to the children's school reports and extracurricular activities. Regarding the property settlement, the court ruled that the proceeds from the sale of the matrimonial home be divided, with certain payments made to the husband's parents and the wife.

The final orders included equal shared parental responsibility for the children, the mother's relocation, and detailed provisions for the father's time with the children. The court also ordered the sale of the former matrimonial home and the division of its proceeds, with specific payments to the husband's parents and the wife. Both parties were granted access to the children's school-related information and activities, and the mother was required to return her personal journals and diaries to the father. The court dismissed the remaining claims and responses.

Orders

Orders of the court

The husband and wife have equal shared parental responsibility for the children of the marriage [X] born in 1999, [Y] born in 2001 and [Z] born in 2004 (hereinafter referred to as “the children”).

The three children live with the wife and she be at liberty to relocate the children’s place of residence from [W] to [C] at the end of the mid-year 2008 South Australian school holidays.

The father spend time with the children as follows:

(a) On each alternate weekend, during school terms, from 5:00pm Friday until 5:00pm the following Sunday or 5:00pm Monday in the event that the following Monday is a public holiday;

(b) For half of all school holiday periods;

(c) From 11:00am on 25 December 2008 to 5:00pm on 26 December 2008 and for the same periods in each alternate year thereafter;

(d) From 12:00 noon on 24 December 2009 to 11:00am on 25 December 2009 and for the same periods in each alternate year thereafter;

(e) For special occasions, including the children’s birthdays, Father’s Day and Easter at times to be agreed between the parties.

In order to give effect to order 3 hereof the children be exchanged between the parties at any such places as may be agreed between the parties from time to time but failing agreement the wife deliver the children to the husband at the beginning of each period referred to in order 3 above and the husband return the children to the wife at the conclusion of each such period.

Both parties be at liberty to telephone the children at all reasonable times when the children are in the care of the other parent.

Both parties be at liberty to attend all of the children’s sporting and extra curricular activities and all school functions routinely attended by parents in respect of all and any of the children.

Each party be at liberty to obtain copies of the children’s school reports and school photographs and any other school related information in respect of the children.

The husband and wife do all reasonable things to ensure that the other is kept informed in a timely manner of any issues relating to the well being, health, education of the children whilst they are with each of them.

In full and final settlement of all claims for settlement of matrimonial property:

The parties forthwith do all things necessary and execute all necessary documents to place the former matrimonial home situate at Property D, [W] on the market for a price to be agreed between them and upon sale of the property the proceeds of sale be divided as follows:

(a) Firstly to pay the mortgage secured against the aforesaid property;

(b) Secondly to pay the costs, commissions and expenses related to the said sale;

(d) Fourthly the balance to be divided as to fifty percent to the husband and fifty percent to the wife.

10.

Concurrently with the payment referred to in order 9(d), the husband pay to the wife the sum of $10,000.00 from his share of the proceeds of sale.

11.

Unless otherwise as specified in these orders and except for the purposes of enforcing the payment of any moneys due under these or subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all property (including choses in action) in possession of such party as at this date;

(b) Each party hereby foregoes any claim that he or she may have to superannuation benefits belonging to or earned by the other which are standing in the other’s name;

(d) Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

12.

The husband forthwith return to the wife her personal journals and diaries.

13.

The application and response herein be otherwise dismissed.

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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