DELAINE & ANDREW - [2008] FamCA 1059

FAMILY COURT OF AUSTRALIA

DELAINE & ANDREW

[2008] FamCA 1059

FAMILY LAW – CHILDREN – with whom children live and spend time – acrimonious dispute between parties – where children have poor relationship with husband – best interests of the children – where children have expressed strong wishes that they do not want to spend time with the husband – children to live with the wife and spend time with the husband – mother to have sole parental responsibility for the children’s long term care, welfare and development

FAMILY LAW – PROPERTY SETTLEMENT – alteration of property interests – determination of assets and liabilities in dispute – status of wife’s relationship with current husband – contributions assessed 52.5%/ 47.5% in wife’s favour –– adjustment to wife of 2.5% on account of s 75(2) factors – superannuation considered separately – wife to retain her superannuation interests

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75(2) & 79

Goode and Goode (2006) FLC 93-286
Chorn and Hopkins (2004) FLC 93-204

APPLICANT:

Ms Delaine

RESPONDENT:

Mr Andrew

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADF

1216

2004

DATE DELIVERED:

5 December 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATES:

19-23 May 2008
2 July 2008 [CHILDREN’S ISSUES]

22-26 September 2008
[FINANCIAL ISSUES]

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Whittle

SOLICITOR FOR THE APPLICANT:

David Burrell & Co

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

David Davidson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr B Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hume Taylor & Co

Orders

The wife have sole parental responsibility for the long term care, welfare and development of R and E both born on the … August 1993.
The children live with the wife.
The children spend time with the husband as follows:
(a)during school terms each alternate weekend from the conclusion of school on the first Friday of the term to the commencement of school the following Monday or the commencement of school on Tuesday if the Monday is a Public Holiday commencing on the 30 January 2009;
(b)for the first half of all South Australian school term holidays (except for the period 4.00 pm Christmas Eve to 4.00 pm Boxing Day, which shall be in accordance with subparagraphs (d) and (e) herein) commencing from the conclusion of school on the last day of term and concluding at 5.00 pm on the middle Saturday of the school holiday period;
(c)on Father’s Day from 10.00 am to 5.00 pm PROVIDED THAT the children spend time with the wife on Mother’s Day from 10.00 am to 5.00 pm if they are otherwise in the care of the husband;
(d)from 4.00 pm on Christmas Eve 2008 until 4.00 pm on Christmas Day 2008 and each alternate year thereafter;
(e)from 4.00 pm on Christmas Day 2009 until 4.00 pm on Boxing Day 2009 and each alternate year thereafter;
(f)for 2009 and thereafter the children spend a minimum of five [5] 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.

Continue reading DELAINE & ANDREW

Details

AGLC: DELAINE & ANDREW [2008] FamCA 1059
Case: [2008] FamCA 1059
Decision Date: 5 December 2008

CaseChat Overview and Summary

In this matter before Dawe J, the court considered an acrimonious dispute between the parties concerning their children and the division of their property. The children, R and E, born in August 1993, had expressed strong wishes not to spend time with the husband, and the court noted their poor relationship with him. The proceedings also involved the determination of assets and liabilities in dispute, including the status of the wife’s relationship with her current husband.

The primary legal issues before the court were to determine with whom the children would live and spend time, and to make orders regarding the long-term care, welfare, and development of the children. Additionally, the court was required to determine the alteration of property interests between the parties, assessing their respective contributions and considering relevant factors under section 75(2) of the Family Law Act 1975 (Cth). The court also had to address the division of superannuation interests.

Dawe J ordered that the wife have sole parental responsibility for the long-term care, welfare, and development of the children, and that the children live with the wife. The court also made detailed orders for the children to spend time with the husband, balancing his time with the children against their expressed wishes and their relationship with him. In relation to property, the court assessed contributions at 52.5% in the wife's favour and made a further adjustment of 2.5% on account of section 75(2) factors. Superannuation was considered separately, with the wife retaining her superannuation interests. The court then made specific orders for the transfer of various properties, assets, and liabilities between the parties to give effect to the property settlement. The wife's applications for lump sum child support and spousal maintenance were dismissed, and the question of costs was reserved.

Orders

Orders of the court

The wife have sole parental responsibility for the long term care, welfare and development of R and E both born on the … August 1993.

The children live with the wife.

The children spend time with the husband as follows:

(a) during school terms each alternate weekend from the conclusion of school on the first Friday of the term to the commencement of school the following Monday or the commencement of school on Tuesday if the Monday is a Public Holiday commencing on the 30 January 2009;

(b) for the first half of all South Australian school term holidays (except for the period 4.00 pm Christmas Eve to 4.00 pm Boxing Day, which shall be in accordance with subparagraphs (d) and (e) herein) commencing from the conclusion of school on the last day of term and concluding at 5.00 pm on the middle Saturday of the school holiday period;

(c) on Father’s Day from 10.00 am to 5.00 pm PROVIDED THAT the children spend time with the wife on Mother’s Day from 10.00 am to 5.00 pm if they are otherwise in the care of the husband;

(d) from 4.00 pm on Christmas Eve 2008 until 4.00 pm on Christmas Day 2008 and each alternate year thereafter;

(e) from 4.00 pm on Christmas Day 2009 until 4.00 pm on Boxing Day 2009 and each alternate year thereafter;

(f) for 2009 and thereafter the children spend a minimum of five [5] hours on their birthday, such times to be agreed between the parties and in default of agreement from the conclusion of school until 9.00 pm if their birthday falls on a school day or from 4.00 pm until 9.00 pm if their birthday falls on a weekend;

(g) handovers not taking place at the children’s school occur on the front steps at the Church at K or at such other place as may be agreed between the parties;

Until the end of 2009 the husband and wife share equally in the cost of any future counselling of the children.

The husband be at liberty to obtain information and reports concerning the children from any Doctor, Treating Specialist, Counsellor, School Principal or Teacher, with the wife providing written authority for the same to the husband upon his written request.

In full and final settlement of any claim that either party may have against the other for settlement of property or alteration of interest in property:

(a) the husband within 21 days from today do transfer to the wife and or her nominee all his estate and interest whatsoever in the W Farm or improvements thereon being the land situated at and described in Certificate of Title Volume … Folio … and Folio … and Volume … Folio …;

(b) contemporaneously with the transfer referred to in sub-paragraph (a) hereof the husband do pay monies owing and do all things and execute all documents as shall be necessary to effect the release from security given to Bank SA in relation to the land and improvements to ensure that the wife shall receive the whole of the interest in the real estate known as the W Farm free and unencumbered;

(c) within 21 days from the date hereof the wife do transfer to the husband all her estate and interest in the K shop, being the whole of the land described in Certificate of Title Volume … Folio … and the house situate at O being the whole of the land described in Certificate of title Volume … Folio … PROVIDED THAT the husband shall contemporaneously secure the release of the wife from any liabilities of and in relation to any memorandum of mortgage or loans secured or guaranteed with the said property, including but without limiting the generality hereof the mortgage numbers 8… and 7… to ensure that the wife is no longer responsible for any debts, mortgages, securities, credit card payments or guarantees relating to any such debts;

(d) as to M trust and T Company (“the said entities”);

(i) within 21 days the wife do transfer to the husband all her shareholding or capital accounts in the said entities;

(ii) the wife shall resign from any position she may hold in the said entities;

(iii) the wife shall transfer to the husband any entitlement to any distribution she may have from the said entities;

(iv) the husband shall indemnify the wife in relation to any or all liabilities of the wife to any of the said entities including but without limiting the generality of the foregoing any income tax liability of either party hereafter arising out of the said entities or the wife’s position in the said entities and the husband shall pay as and when such liability shall fall due any income tax liability or Capital Gains Tax liability arising out of any distribution allegedly made to the wife from the said entities and shall indemnify the wife for any such liability;

(v) subject to the husband’s compliance with the above orders the wife shall thereafter have no claim against the husband or the said entities in relation to the assets of the said entities or any entitlement of the said entities whether by way of loan account wages or dividends;

(vi) within 21 days the husband do all things and execute all documents as shall be necessary to effect the discharge of the wife or release of the wife from any amount owing in relation to any joint debit bank account or joint credit card facility or overdraft which the wife may be liable whether as creditor or a guarantor jointly with the husband or in relation to any of the said entities;

(vii) subject to compliance by the husband with the above orders any interest claim, right or entitlement of the wife whatsoever in M Trust and T Company do vest in the husband;

(e) the balance of proceeds of sale of the property at G (being the net proceeds of sale after payment therefrom of all amounts owing to Y ANDREW pursuant to the Orders of the District Court of South Australia in Action Number … of 2007, discharge of mortgage and costs of sale) and the net proceeds of sale of the K shop be divided as follows:

(i) payment to the wife of the sum of $125,150; and

(ii) balance to the husband;

(f) as to the C Superannuation Fund

(i) within 21 days the parties do take such steps and do all such things as shall be necessary to transfer from the C Superannuation Fund to a fund of the wife’s choosing being a rollover payment to the fund on behalf of the wife in the sum of $11,482 which will thereafter remain the entitlement of the wife free from any claim by the husband;

(ii) immediately upon rollover of the said sum the wife do resign as a trustee of the said C Superannuation Fund;

(g) within 21 days the wife do transfer to the husband any interest in the Toyota Land Cruiser motor vehicle in the husband’s possession;

(h) subject to compliance with the above orders the husband do otherwise retain:

(i) his AMP & Westfarmers shares;

(ii) his D investment;

(iii) The F site and shed;

(iv) his Holden Calais motor vehicle;

(v) the Holden Caprice motor vehicle registered in his sole name;

(vi) the children’s mini bikes;

(vii) two trailers;

(viii) plant and equipment at K shop;

(ix) plant and equipment at N property;

(x) furniture and household effects currently in his possession;

(xi) miscellaneous tools and machinery at O property;

(xii) all other savings assets and personal property currently in the husband’s possession;

(i) subject to compliance with the above orders the wife do otherwise retain:

(i) her Ford Fairmont vehicle;

(ii) horse float;

(iii) furniture and household effects currently in her possession;

(iv) miscellaneous tools and machinery at W Farm;

(v) her jewellery;

(vi) equestrian equipment;

(vii) four horses;

(viii) her 129 AMP shares;

(ix) HESTA Superannuation;

(x) all other savings assets and personal property currently in the wife’s possession;

(j) each party do hereby release and discharge any liability for any claim that either may have against the other of any nature whatsoever in respect of any property now or hereafter owned by them or any personal debts or liabilities incurred SAVE AND EXCEPT for compliance with the provisions hereof;

The wife’s application for lump sum Child Support is dismissed.

The wife’s claim for spousal maintenance is dismissed.

Each party has liberty to apply for consequential orders.

10.

The question of costs of and in relation to the proceedings is reserved.

11.

If either party seeks an order for costs in relation to these proceedings:

(a) that party do give the other party written notice within 28 days from the date hereof; and

(b) any application for costs is to be filed in the Court within 28 days from the date hereof.

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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