FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLIMO & PECORA | [2020] FCCA 2644 |
| Catchwords: FAMILY LAW – Final hearing – property – where wife made greater contributions – where factors under section 79(4)(e) fall in favour of an adjustment to the wife – where it is just and equitable to alter interests of parties’ in their property. FAMILY LAW – Final hearing – contravention – where wife asserts contravention of a notation. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 64D, 65D, 65DAA, 65DAB, 65Y, 68B, 70NAC, 75, 79, 117 |
| Cases cited: Chapman v Palmer [1978] FamCA 86 A & A & The Child Representative [1998] FamCA 25 M & M (1998) 166 CLR 69 |
| Applicant: | MS CLIMO |
| Respondent: | MR PECORA |
| File Number: | SYC 825 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 6 September 2019 |
| Date of Last Submission: | 6 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2020 |
REPRESENTATION
The Applicant appeared on her own behalf.
| Counsel for the Respondent: | Mr O'Reilly |
| Solicitors for the Respondent: | Vizzone Ruggero Twigg Lawyers |
ORDERS
THE COURT ORDERS:
That all previous parenting orders and notations relating to the child X born in 2014 are dismissed.
That the parties have equal shared parental responsibility for the child X born in 2014 (“the child”).
That the child live with his mother.
That the child spend time with his father as follows:
(a)during school term time:
(i)in Week 1 from the end of school (or 3.00 pm if not a school day) on Friday until the start of school (or 9.00 am if not a school day) on Tuesday, the first such occasion to commence on the Friday following the making of these orders;
(ii)in Week 2 from the end of…
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- CLIMO & PECORA [2020] FCCA 2644
- Case
- [2020] FCCA 2644
- Decision Date
CaseChat Overview and Summary
The court was required to determine the parenting orders that would best serve the interests of the child, including whether family violence, even if not directly impacting the child, was a relevant consideration. It also had to decide on the just and equitable division of the parties' property, taking into account their respective contributions and other relevant factors under section 79(4)(e) of the *Family Law Act 1975* (Cth). Finally, the court considered the alleged contravention of a notation.
In relation to parenting, the court dismissed previous orders and made new orders for equal shared parental responsibility, with the child to live with the mother and spend substantial time with the father, detailing specific arrangements for term time, school holidays, birthdays, and other significant dates. The court also imposed various orders regarding communication, travel, religious upbringing, and the conduct of the parents towards each other and the child, including restraints on discussing proceedings with the child and physical discipline. Regarding property, the court found it just and equitable to alter the parties' interests, ordering the wife to pay the husband a sum of $127,785.00 and transfer her interest in the former matrimonial home to the wife, with detailed provisions for the transfer and repayment of the mortgage. The court also made orders regarding the closure of a joint bank account and the allocation of liabilities and assets between the parties.
Orders
Orders of the court
THE COURT ORDERS:
1.
That all previous parenting orders and notations relating to the child X born in 2014 are dismissed.
2.
That the parties have equal shared parental responsibility for the child X born in 2014 (“the child”).
3.
That the child live with his mother.
4.
That the child spend time with his father as follows:
(a) during school term time:
(i) in Week 1 from the end of school (or 3.00 pm if not a school day) on Friday until the start of school (or 9.00 am if not a school day) on Tuesday, the first such occasion to commence on the Friday following the making of these orders;
(ii) in Week 2 from the end of school (or 3.00 pm if not a school day) on Monday until the start of school (or 9.00 am if not a school day) on Tuesday, the first such occasion to commence on the Monday second after the making of these orders; and
(iii) each Wednesday from 8.00 am until the start of school.
(b) during each school holidays:
(i) for the first half of school holidays that commence in an odd numbered year; and
(ii) for the second half of school holidays that commence in an even numbered year; and
(iii) for this purpose school holidays commence at the end of the child’s school attendance for each school term and finish at the start of the child’s school attendance for the new term, with the mid-point being as agreed between the parties and failing agreement at 6.00 pm on the second Saturday of Term holidays that are two weeks long and at 6.00 pm on the middle day of school holidays that are more than two weeks long.
(c) on the child’s birthday, if not otherwise in the father’s care at these times, from after school until 7.00pm if on a day the child is at school, or from 10.00 am until 4.00 pm if not a day that the child is at school.
(d) on the Father’s day weekend from 5.00 pm on Saturday until the start of school on Monday.
(e) on the father’s birthday, from the end of school until the start of school the next day, or 9.00 am if the next day is a Saturday, or from 10.00 am until 7.00 pm if the child is not at school.
(f) from 6.00 pm on 24 December until 2.00 pm on 25 December in odd numbered years and from 2.00 pm on 25 December until 6.00 pm on 26 December in even numbered years.
(g) from 2.00 pm on Easter Sunday until 5.00 pm on Easter Monday in even numbered years and from 9.00 am on Easter Saturday until 2.00 pm on Easter Sunday in odd numbered years.
(h) At such other times as may be agreed between the parties from time to time.
5.
That notwithstanding any other order the child shall be in his mother’s care:
(a) on the child’s birthday, if not otherwise in the mother’s care at these times, from after school until 7.00pm if on a day the child is at school, or from 10.00 am until 4.00 pm if not a day that the child is at school.
(b) on the Mother’s day weekend from 5.00 pm on Saturday until the start of school on Monday.
(c) on the mother’s birthday, from the end of school until the start of school the next day, or 9.00 am if the next day is a Saturday, or from 10.00 am until 7.00 pm if not a day on which the child is at school.
(d) from 6.00 pm on 24 December until 2.00 pm on 25 December in even numbered years and from 2.00 pm on 25 December until 6.00 pm on 26 December in odd numbered years.
(e) from 2.00 pm on Easter Sunday until 5.00 pm on Easter Monday in odd numbered years and from 9.00 am on Easter Saturday until 2.00 pm on Easter Sunday in even numbered years.
6.
That changeovers at the start of the child’s time with the father on Wednesdays during school terms will occur at the entrance to Location J near the mother’s place of residence.
7.
That changeovers other than at the start of the child’s time with his father on Wednesdays not occurring at the child’s school shall occur as agreed between the parties from time to time and failing agreement for any occasion shall occur at Cafe B at C Park at Suburb D.
8.
That when the child is in the other parent’s care during school holidays the parent without care of the child shall have telephone or audio/video communication with the child each Friday and Monday at some time between 7.00 pm and 7.30 pm.
9.
That pursuant to section 65Y of the Family Law Act 1975 (Cth) each parent may take the child outside the Commonwealth of Australia for the purpose of a holiday on condition that:
(a) the travelling parent provides notice to the other parent no less than one month prior to departure of their intention to travel with the child outside the Commonwealth of Australia;
(b) the travelling parent provides to the other parent no less than fourteen days prior to departure a copy of the child’s return travel ticket, an itinerary detailing all flight or cruise details including but not limited to departure and arrival times and details of all addresses where the child will be staying and telephone contact details for the child available to the child throughout the trip;
(c) the child may not travel to a country that is not a convention country under regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) in relation to the Hague Convention on the Civil Aspects of International Child Abduction, without the consent of the other parent having first been obtained as required by section 65Y of the Family Law Act 1975 (Cth) and regulation 13 of the Family Law Regulations 1984; and
(d) the time of the travel shall occur during the travelling parent’s time with the child pursuant to these orders unless agreed otherwise between the parents in writing.
10.
That the mother shall retain possession of the child’s passport and shall provide the passport to the father immediately he has complied with order 9(b) and the father shall return possession of the passport to the mother within 3 days of the child’s return to the Commonwealth of Australia.
11.
That the father shall not take the child on a holiday to Italy more than once each alternate year.
12.
That the mother is restrained from altering the child’s religion from the Roman Catholic faith HOWEVER the mother shall nevertheless be entitled to have the child accompany her to religious services of other Christian denominations.
13.
That in the event that the child becomes ill or is the subject of a medical emergency the parent with care of the child at that time shall inform the other parent as soon as practicable.
14.
That each of the parties shall keep the other party informed immediately of any change to their residential address, mobile telephone number, residential telephone number (if existing), workplace telephone number and email address.
15.
That each of the parties is restrained from making any comment that is critical, insulting or derogatory about the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of the child.
16.
That each of the parents is restrained from allowing the child to remain in the presence of or within the child’s hearing of any other person who is making any comment that is critical, insulting or derogatory about the other parent, any member of the other parent’s family or any member of the other parent’s household.
17.
That each of the parties is restrained from:
(a) discussing these proceedings with the child;
(b) showing to or allowing the child to have access to any document relating to these proceedings;
(c) interrogating the child about events or conversations in the other party’s household; and
(d) physically disciplining the child or allowing or instructing any other person to physically discipline the child.
18.
The Court orders pursuant to Section 79 of the Family Law Act 1975 (Cth):
(a) That within three months from the date of this order the wife pay to the husband the sum of $127,785.00.
(b) That simultaneously with payment by the wife to the husband of the sum referred to in paragraph (a) hereof:
(i) The husband sign all documents and instruments and do all things necessary to transfer to the wife the whole of his right title and interest in the former matrimonial home property at E Street, Suburb F in the State of New South Wales being the whole of the land in Certificate of Title Folio Identifier ... (“the property”); and
(ii) Simultaneously with such payment the wife shall be solely responsible as between the wife and the husband for all outgoings payable in relation to the property and the wife shall indemnify and keep indemnified the husband in relation to all and any such payments; and
(iii) Further simultaneously with such payment the wife shall do all things necessary to repay the loan account in the joint names of the parties with the Australia and New Zealand Banking Group Limited secured by the mortgage currently registered over the property being registered dealing number ... (“the mortgage”) so as to release the husband from all and any liability in relation to that loan account; and
(iv) The parties shall each do all things necessary to obtain a Discharge of Mortgage in relation to the mortgage; and
(v) The husband shall do all things necessary to obtain a Withdrawal of Caveat in relation to the Caveat registered dealing number ... registered on title to the property by his solicitors in these proceedings.
(c) That in the event that the wife does not pay to the husband the sum referred to in paragraph (a) herein within three months from the date of this order or that the wife fails to comply with the requirements of paragraph (b)(iii) herein within three months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list for sale the property at a listing price agreed upon between them with a real estate agent agreed upon between them and shall proceed to a sale of the property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:-
(i) In adjustment of rates on settlement;
(ii) In payment of agent’s commission (if any) on sale;
(iii) In payment of legal and all other proper costs of sale;
(iv) In payment to the Australia and New Zealand Banking Group Limited of a sum sufficient to discharge the mortgage ;
(v) In payment to the husband of the sum of $127,785.00 together with any interest payable thereon pursuant to the terms of the Family Law Act 1975 (Cth);
(vi) In payment of the balance to the wife.
(d) That in the event that paragraph (c) operates and the property does not sell by private sale within six months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list the property for sale by public auction with an auction agent agreed upon between them at a reserve price agreed upon between them and shall proceed to a sale at a sale price agreed upon between them and the parties shall be equally responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale be applied as provided in paragraph (c) hereof.
(e) That in the event that paragraph (d) operates and the property does not sell by public auction in accordance with paragraph (d) hereof then the property shall be resubmitted for sale by private treaty in accordance with the provisions of paragraph (c) hereof and the property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in paragraph (c) hereof.
(f) That in the event that the parties are unable to reach agreement in relation to an auction agent, a real estate agent, a listing price, a reserve price or a sale price whether for a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of New South Wales or his nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be equally responsible for the costs and expenses of the President or his nominee in making such determination.
(g) That within 28 days the parties shall each do all things necessary to close the bank account in their joint names with the Commonwealth Bank of Australia ending in ...45 and pay the credit balance received on such closure to the wife.
(h) That the wife shall be solely liable as between the husband and the wife for payment of any outstanding liability relating to employer’s compulsory superannuation payments arising from the parties’ conduct, themselves or through any corporate vehicle, of the G Group business.
(i) That the wife is the sole owner in law and in equity as between herself and the husband of all items of real property, personal property and financial assets, including superannuation entitlements, currently in her power, possession or control other than as specifically dealt with elsewhere in this order.
(j) That the husband is the sole owner in law and in equity as between himself and the wife of all items of real property, personal property and financial assets, including superannuation entitlements, currently in his power, possession or control other than as specifically dealt with elsewhere in this order.
19.
That in the event that either party refuses or neglects to comply with any part of this order in relation to the execution of any deed, instrument or document the court appoints and authorises the Registrars of the Federal Circuit Court of Australia, Sydney Registry, to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.
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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