FAMILY COURT OF AUSTRALIA
| DARLEY & DARLEY (NO. 2) | [2018] FamCA 1086 |
| FAMILY LAW – CHILDREN – With whom a child lives – where each parent seeks that the children, aged 9 and 12, live primarily with them – where it is ordered that the children live with the mother – where the parents will have equal shared parental responsibility – where orders are made for the children to spend time with the father each alternate weekend and during school holidays. FAMILY LAW – PROPERTY SETTLEMENT - Settlement in relation to marriage – just and equitable – where the parties cohabited for nearly eleven years – where a trustee for sale of the former matrimonial home has been previously appointed – where the parties are to share equally in the nett sale proceeds obtained following the sale of the former matrimonial home – where otherwise, it is ordered that each party retain the property that is in each party’s possession. |
| Family Law Act 1975 (Cth) |
| Banks v Banks (2015) FLC 93-637 Bevan v Bevan (2013) FLC 93-545 McCall v Clark (2009) FLC 93-405 Norbis v Norbis (1986) 161 CLR 513 |
| APPLICANT: | Mr Darley |
| RESPONDENT: | Ms Darley |
| INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
| FILE NUMBER: | BRC | 2317 | of | 2013 |
| DATE DELIVERED: | Orders made 12 December 2018; Reasons delivered 18 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 17, 18, 19 & 20 October 2017, 13 & 14 February 2018, 23 May 2018 |
REPRESENTATION
| APPLICANT: | In person |
| RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Pendergast |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston, Norman & Kingston |
ORDERS
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous parenting orders are discharged.
The children, X, born on … 2006, and Y, born on … 2009, live with the mother.
The father and mother have equal shared parental responsibility for the major long term issues of the children including:
(a) the children’s education (both current and future); and
(b) the children’s religious and cultural upbringing; and
(c) the children’s health; and
(d) the children’s names; and
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with, or live with, either parent.
The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) they shall inform the other parent about the decision to be made;
(b) they shall consult with each other on terms that they agree;
(c) they shall make a genuine effort to come to a joint decision.
Each…
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- AGLC
- Darley & Darley (No. 2) [2018] FamCA 1086
- Case
- [2018] FamCA 1086
- Decision Date
CaseChat Overview and Summary
The court was required to determine with whom the children would live, whether they would have equal shared parental responsibility, and the specific arrangements for the children to spend time with each parent. In relation to property, the court needed to make orders for the just and equitable distribution of assets, including the former matrimonial home, and otherwise determine how each party would retain their respective possessions.
The court ordered that the children live with the mother and that both parents have equal shared parental responsibility for major long-term issues. Specific arrangements were made for the children to spend time with the father, including alternate weekends and periods during school holidays, with detailed provisions for consultation and daily decision-making. In terms of property, the court ordered that the parties share equally in the net sale proceeds of the former matrimonial home, with a trustee for sale previously appointed to facilitate this. Otherwise, each party was to retain the property in their possession.
Orders
Orders of the court
IT IS ORDERED BY WAY OF FINAL ORDER THAT
1.
All previous parenting orders are discharged.
2.
The children, X, born on … 2006, and Y, born on … 2009, live with the mother.
3.
The father and mother have equal shared parental responsibility for the major long term issues of the children including:
(a) the children’s education (both current and future); and
(b) the children’s religious and cultural upbringing; and
(c) the children’s health; and
(d) the children’s names; and
(e) changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with, or live with, either parent.
4.
The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) they shall inform the other parent about the decision to be made;
(b) they shall consult with each other on terms that they agree;
(c) they shall make a genuine effort to come to a joint decision.
5.
Each parent has responsibility for daily decisions about the day to day care, welfare and development of the children whilst they are in his or her care.
6.
The children spend time with the father at all times as may be agreed by the parents in writing but, failing agreement, as follows:
(a) commencing Friday 14 December 2018: each alternate weekend, from 5.00 pm on Friday to 4.00 pm on Sunday; and
(b) during the school holiday period at the end of Terms 1, 2 and 3 each year:
(i) for the first half of the school holiday period in even numbered years: from after school on the day school finishes for the Term for seven (7) consecutive nights, with changeover to occur at 5.00pm on the day immediately after the seventh (7th) consecutive night; and
(ii) for the second half of the school holiday period in odd numbered years: from 5.00pm on the second Friday after school finishes for the Term (where the day on which school ends for the Term is the first Friday) for seven (7) consecutive nights, with changeover to occur at 5.00pm on the day immediately after the seventh (7th) consecutive night.
(c) during the school holiday period at the end of Term 4 each year:
(i) in December 2018/January 2019: for seven (7) consecutive nights in week 1, week 3 and week 5 of the school holiday period, with such time to occur as follows:
(1) in week 1: from after school on the day school finishes for the Term, being 14 December 2018 (with the father to collect the children from R School at the commencement of this time) for seven (7) consecutive nights, with changeover to occur at 10.00 am on the day immediately after the seventh (7th) consecutive night, being 21 December 2018; and
(2) in week 3: from 5.00 pm on the third Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) for seven (7) consecutive nights, with changeover to occur at 5.00 pm on the day immediately after the seventh (7th) consecutive night; and
(3) in week 5: from 5.00 pm on the fifth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) for seven (7) consecutive nights, with changeover to occur at 5.00 pm on the day immediately after the seventh (7th) consecutive night.
(ii) in December 2019/January 2020: for seven (7) consecutive nights in week 2, week 4 and week 6 of the school holiday period, with such time to occur as follows:
(1) in week 2: from 5.00 pm on the second Friday after school finishes for the Term for seven (7) consecutive nights, with changeover to occur at 5.00 pm on the day immediately after the seventh (7th) consecutive night; and
(2) in week 4: from 5.00 pm on the fourth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) for seven (7) consecutive nights, with changeover to occur at 5.00 pm on the day immediately after the seventh (7th) consecutive night; and
(3) in week 6: from 5.00 pm on the sixth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) for seven (7) consecutive nights, with changeover to occur at 5.00 pm on the day immediately after the seventh (7th) consecutive night.
(iii) commencing from December 2020: for the first half of the school holiday period in even numbered years and for the second half of school holiday period in odd numbered years, with such time to occur as follows:
(1) when the time occurs during the first half of the school holiday period: from after school on the day school finishes for the Term until 5.00 pm on the fourth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday); and
(2) when the time occurs during the second half of the school holiday period: from 5.00 pm on the fourth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) until 5.00 pm on the Friday before school recommences for the year.
7.
Unless otherwise agreed between the parents in writing or otherwise specified in this Order, changeovers shall occur as follows:
(a) for weekend time during school Terms: the father shall collect the children from McDonald’s Suburb R, Suburb R City Shopping Centre at the commencement of their time with him and the mother shall collect the children from the K Town Shopping Centre at the conclusion of their time with the father; and
(b) when the children are spending time with their father during the first half of the school holidays: the father shall collect the children from school at the commencement of their time with him and the mother shall collect the children from the K Town Shopping Centre at the conclusion of their time with the father; and
(c) when the children are spending time with their father during the second half of the school holidays: the father shall collect the children from McDonald’s Suburb R, Suburb R City Shopping Centre at the commencement of their time with him and the mother shall collect the children from the K Town Shopping Centre at the conclusion of their time with the father; and
(d) for any other changeovers during school holiday time: the father shall collect the children from McDonald’s Suburb R, Suburb R City Shopping Centre at the commencement of their time with him and the mother shall collect the children from the K Town Shopping Centre at the conclusion of their time with the father.
8.
If the father intends to spend time, as prescribed by Order 6(c)(i) above, with the children during the December 2018/January 2019 school holiday period, he must give the mother written notice of that intention (with the same to be copied to the Independent Children’s Lawyer) by 5.00pm on Thursday 13 December 2018.
9.
If the father intends to spend time, as prescribed by Orders 6(b) and 6(c) above, with the children during any school holiday period other than the December 2018/January 2019 school holiday period, he must give the mother written notice of that intention in the following manner:
(a) for time during the school holidays at the end of Term 1 in any year: by 5.00 pm on the sixth Friday after school commences for Term 1; and
(b) for time during the school holidays at the end of Term 2 in any year: by 5.00 pm on the sixth Friday after school commences for Term 2; and
(c) for time during the school holidays at the end of Term 3 in any year: by 5.00 pm on the sixth Friday after school commences for Term 3; and
(d) for time during the school holidays at the end of Term 4 in any year: by 5.00 pm on the sixth Friday after school commences for Term 4.
10.
In the event that the father does not provide notice to the mother in the manner required by pursuant to Clauses 8 and 9 of this Order:
(a) the operation of Clauses 6(b) and 6(c)[whichever is applicable] of this Order shall be suspended during the holiday period for which the father did not give notice to the mother; and
(b) in lieu of the holiday time prescribed by Clauses 6(b) and 6(c)[whichever is applicable], the children shall spend alternate weekend time with the father as provided for by Clause 6(a) of this Order.
11.
Provided that the father gives the mother notice of his intention to spend time with the children during school holidays in the manner prescribed by Clauses 8 and 9 of this Order, the operation of Clause 6(a) of this Order shall be suspended during the school holiday periods.
12.
Clause 6(a) of this Order shall recommence as follows:
(a) after the school holiday period at the end of Terms 1, 2 and 3 each year:
(i) if the children have spent time with the father in the first half of the holiday period: on the first weekend of school term; or
(ii) if the children have spent time with the father in the second half of the holiday period: on the second weekend of school term.
(b) after the end of the school holiday period which occurs at the end of Term 4 in 2018: on the first weekend of school term in 2019; and
(c) after the end of the school holiday period which occurs at the end of Term 4 in 2019: on the second weekend of school term in 2020; and
(d) after the end of the school holiday period which occurs at the end of Term 4 in 2020 and each year thereafter:
(i) if the children have spent time with the father in the first half of the holiday period: on the first weekend of school term; or
(ii) if the children have spent time with the father in the second half of the holiday period: on the second weekend of school term.
13.
Unless otherwise agreed between the parents in writing, the children shall spend time with their father from 5.00 pm Christmas Eve to 12.00 pm Boxing Day in even numbered years.
14.
Unless otherwise agreed between the parents in writing, the children shall spend time with their mother from 5.00 pm Christmas Eve to 12.00 pm Boxing Day in odd numbered years.
15.
In the event that the children are not otherwise in their father’s care on Father’s Day, they shall spend time with him from 4.00 pm on the Saturday immediately before Father’s Day until 5.00 pm on Father’s Day, with the father to collect the children at the commencement of that time from the McDonald’s Suburb R, Suburb R City Shopping Centre and the mother to collect the children at the conclusion of that time from K Town Shopping Centre.
16.
In the event that the children are not otherwise in their mother’s care on Mother’s Day, they shall return to her care at 4.00 pm on the Saturday immediately before Mother’s Day, with the mother to collect them from K Town Shopping Centre.
17.
In the event that the children are not otherwise in their father’s care on each of their birthdays, both of them shall spend time with him between 3.00 pm and 7.00 pm on each of those days, with the father to collect them from school at the commencement of that time and the mother to collect them from the McDonald’s Suburb R, Suburb R City Shopping Centre at the conclusion of that time.
18.
Each parent shall communicate with the children, when they are not in their care, by telephone or Skype or Facetime at all reasonable times and not less than each Wednesday between 6.00 pm and 6.30 pm and in order to facilitate this:
(a) the parent with whom the children are not spending time shall initiate the telephone call; and
(b) the parent in whose care the children are at that time shall make the children available to receive the telephone call and, if for any unforeseen circumstance, the children miss the telephone call from the other parent, shall arrange for the children to telephone the calling parent on the following night; and
(c) the parent in whose care the children are at that time shall ensure that the children have privacy during the communication.
19.
In the event that either parent wishes to travel overseas with the children for a holiday, the following shall occur:
(a) the travelling parent shall provide to the other parent not less than eight (8) weeks’ notice of any proposed travel and such notice shall include details of the proposed location and the dates on which it is proposed the children depart the Commonwealth of Australia and return to the Commonwealth of Australia; and
(b) the parent wishing to travel will provide the other parent with an itemised itinerary of the proposed travel plans; and
(c) the travelling parent shall, fifteen (15) days before the proposed date of departure from the Commonwealth of Australia, provide the other parent with an itemised itinerary which shall include contact details whilst overseas, a copy of insurance policies, all accommodation and flight details and a copy of the children’s return tickets.
20.
Unless agreed by the parents in writing, the children shall not be taken to a country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
21.
Both parents shall co-operate with each other regarding the children’s passports and both shall sign all documents necessary to ensure that the children have valid passports.
22.
Each parent shall be at liberty to communicate with the children, when they are not in their care, by telephone or Skype or Facetime on each of the children’s birthdays, each parent’s birthday, Good Friday, Easter Monday and Christmas Day between 6.00 pm and 6.30 pm and in order to facilitate this:
(a) the parent with whom the children are not spending time shall initiate the telephone call; and
(b) the parent in whose care the children are at that time shall make the children available to receive the telephone call and, if for any unforeseen circumstance, the children miss the telephone call from the other parent, shall arrange for the children to telephone the calling parent on the following night; and
(c) the parent in whose care the children are at that time shall ensure that the children have privacy during the communication.
23.
The children shall be at liberty to call either parent at all reasonable times and the parent with whom they are at the time shall assist them to make any calls they reasonably request.
24.
Each parent shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the children.
25.
Without first obtaining the written consent of that parent, neither parent shall enrol the children in any activity which occurs during time when, pursuant to these Orders, the children are living or spending time with the other parent.
26.
Neither parent shall denigrate the other, their religious beliefs or their family to, or in front of or within the hearing of, the children and each shall direct third parties to refrain from denigrating either parent or their family to, or in front of, or within hearing of, the children and, failing their compliance with such a direction, shall remove the children from that environment immediately.
27.
Save in a therapeutic setting, neither parent shall discuss the allegations made in these proceedings with the children.
28.
During the time the children are with either parent, that parent shall:
(a) respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b) speak of the other parent respectfully; and
(c) not insult the other parent in the presence or hearing of the children; and
(d) use their best endeavours to ensure that others do not insult the other parent in the hearing or presence of the children.
29.
Each parent shall keep the other informed of the contact details for the children’s doctors, health care and other treatment providers and, by this Order, those practitioners are authorised to provide each parent with such information about the children as they are lawfully able to provide.
30.
Both parents shall use their best endeavours to follow the reasonable recommendations of the children’s treating medical practitioners.
31.
Each parent shall inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the children and, by this Order, any treating medical practitioner is hereby authorised to provide each parent with such information about the children as they are lawfully able to provide.
32.
Each parent keep the other informed of any school, educational facility or extra-curricular activity provider at which the children attend and, by this Order, such providers are authorised to provide each parent with such information about the children, their attendance and their progress as they are lawfully able to provide.
33.
If there is a cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
34.
Each parent shall ensure that the other is nominated as an emergency contact with any school, medical practitioner or extra-curricular service provider upon which the children attend.
35.
Subject to the conditions imposed by the children’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited, including, but not limited to: carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
36.
Each parent keep the other parent informed at all times of a contact telephone number and email address and:
(a) notify the other as to any change in those details as soon as practicable after such change; and
(b) notify the other parent at least thirty (30) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they currently reside.
37.
Each parent has liberty to provide a copy of the Order made on 12 December 2018 and the accompanying Reasons for Judgment to any school at which, and the medical practitioner/s upon whom, the children attend and to the Department of Communities, Child Safety and Disability Services.
38.
The Independent Children’s Lawyer is discharged on 30 June 2019.
39.
Each parent and the Independent Children’s Lawyer have liberty to apply in relation to the enforcement of the terms of this Order on the giving of 24 hours’ notice in writing.
40.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS DIRECTED THAT
41.
Any application filed by any party in reliance on Order 39 and by which that party seeks to enforce the terms of this Order should immediately be brought to the attention of the Associate to Justice Hogan for listing before her Honour if reasonably practicable.
AND IT IS ORDERED BY WAY OF FINAL ORDER PURSUANT TO S 79 of THE FAMILY LAW ACT 1975 (CTH) THAT
42.
Mr Darley and Ms Darley share equally in the nett sale proceeds obtained following the sale of the property situated at B Street, C Town in the State of Queensland, being the whole of the property described as Lot … on SP … bearing Title reference … and, to give effect to this, the Trustee for Sale appointed pursuant to Order made on 25 July 2017, as amended by Order made on 12 March 2018, is hereby authorised and directed to pay those funds invested by him in accordance with Order 8(c) of the Order made on 25 July 2017 out as follows:
(a) by payment of fifty per cent (50 per cent) of the same to a bank account nominated in writing by Mr Darley; and
(b) by payment of fifty per cent (50 per cent) of the same to a bank account nominated in writing by Ms Darley.
43.
Except as otherwise provided in this Order, Mr Darley shall retain all items of personal property and effects presently standing in his name or possession and control, with the same to include but not be limited to:
(a) household furniture; and
(b) jewellery and personal effects; and
(c) all amounts in bank accounts; and
(d) any motor vehicle in his possession or registered in his name; and
(e) all superannuation entitlements, accounts or policies in his name.
44.
Except as otherwise provided in this Order, Ms Darley shall retain all items of personal property and effects presently standing in her name or possession and control, with the same to include but not be limited to:
(a) household furniture; and
(b) jewellery and personal effects; and
(c) all amounts in bank accounts; and
(d) any motor vehicle in her possession or registered in her name; and
(e) all superannuation entitlements, accounts or policies in her name.
45.
Except as otherwise provided herein, the Applicant and Respondent shall remain liable for any debts in their own name as at the date of this Order and, in this respect, shall indemnify the other from any liability in relation thereto and such debts shall include, but not be limited to, any tax liability arising out of the operation of this Order.
46.
In the event that Mr Darley or Ms Darley refuses or neglects to sign any documents, instrument or writing so as to give effect to this Order within a period of fourteen (14) days from the date of being served with a copy of this Order and the document, instrument or writing sought to be signed, then a Registrar of the Court or his or her appointee may, pursuant to s 106A of the Family Law Act 1975 (Cth) do all acts and things necessary to give validity and operation to the said document, instrument or writing so as to effect compliance with this Order.
47.
Following compliance with the terms of Order 42, the Trustee for Sale is discharged.
AND IT IS FURTHER ORDERED THAT
48.
Save for those aspects of the Application-Contravention filed by Ms Darley on 10 January 2018 in which it is asserted that Mr Darley contravened the order made by Judge Howard on 29 August 2016 by returning the children sunburned on 25 December 2017 and by failing to notify her of a child’s attendance at hospital on or about 8 January 2018, the Application-Contravention filed by Ms Darley on 10 January 2018 is adjourned to a date to be advised for further hearing by any Judge of the Court.
49.
Save as is provided in Order 48, all outstanding Applications are dismissed and the matter is removed from the list of cases awaiting determination.
50.
After the expiration of the appeal period, all subpoenaed documents shall be destroyed or returned to the persons or institutions from which they emanated and all Exhibits shall be returned to the party by whom that Exhibit was tendered.
AND IT IS FURTHER ORDERED THAT
51.
In the event that any party seeks an order that the other party pay his or her costs:
(a) if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and
(b) any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and
(c) the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(d) the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
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