Drewett & Drewett

Case [2012] FamCA 320


FAMILY COURT OF AUSTRALIA

DREWETT & DREWETT [2012] FamCA 320

FAMILY LAW – CHILDREN - Husband seeks week-about arrangement - Found not in children’s best interests based on medical evidence.

FAMILY LAW – PROPERTY - Initial contributions favour husband - Wife receives inheritance after separation - Problem about dealing with “add backs”.

Family Law Act 1975 (Cth)
Coghlan (2005) FLC 93-220
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Kouper and Kouper [2009] FamCA 1080
Kowaliw and Kowaliw (1981) FLC 91-092
Mayne and Mayne [2011] FamCAFC 192
Norbis and Norbis (1983) 9 Fam LR 385
Omacini and Omacini [2005] FamCA 195; (2005) FLC 93-218
Pierce and Pierce [1998] FamCA 74
Polonius and York [2010] FamCAFC 228
Shimizu and Tanner [2011] FamCA 271
APPLICANT: Ms Drewett
RESPONDENT: Mr Drewett
FILE NUMBER: SYC 2919 of 2008
DATE DELIVERED: 23 April 2012
PLACE DELIVERED: Melbourne
PLACE HEARD: Sydney
JUDGMENT OF: Cronin J
HEARING DATE: 19 - 21 July 2011; 12, 13 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney
SOLICITOR FOR THE APPLICANT: Gibson Howlin Lawyers
COUNSEL FOR THE RESPONDENT: Ms Gillies
SOLICITOR FOR THE RESPONDENT: Paltos Briggs Family Lawyers

Orders

  1. That the husband and wife have equal shared parental responsibility for the children C born … September 1999 and N born … September 2001.

  2. That the children live with the husband as follows:

    (a)in respect of C, during each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday morning;

    (b)in respect of N, during each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Monday;

    (c)in respect of C and N in the week not referred to in paragraph 2(a) in (b), from after school on Thursday until 7.30pm that evening;

    (d)in respect of C and N, for one half of each school term holiday by agreement and failing agreement, the first half in each even numbered year and the second half in each odd numbered year;

    (e)in respect of C and N, for one half of the long summer school holidays but on an alternating week-about basis for the 2012-2013 holidays and thereafter, for one half by agreement and failing agreement, the first half in even numbered years and the second half in odd numbered years; and

    (f)in respect of C and N, during Father’s Day in each year from 6.00pm on the Saturday before Father’s Day until the commencement of school on the Monday after Father’s Day.

  3. That the children otherwise live with the wife at all other times.

  4. That the husband’s time under paragraph 2(a), (b) and (c) of these orders is suspended during school holidays and the long summer holidays and will resume immediately thereafter as if it had not been so suspended.

  5. That the husband’s time under paragraphs 2(a), (b) and (c) of these orders shall be suspended from 6.00pm on the Saturday before Mother’s Day until the commencement of school on…

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AGLC
Drewett & Drewett [2012] FamCA 320
Case
[2012] FamCA 320
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Cronin J considered a dispute between a husband and wife concerning their children and property. The husband sought a week-about parenting arrangement for their two children, C and N. The wife's inheritance received after separation was a significant factor in the property settlement, and the court also addressed issues relating to "add backs" in the property division.

The court was required to determine the most appropriate parenting arrangements for the children, specifically whether the husband's proposed week-about time was in their best interests, considering the available medical evidence. In relation to property, the court needed to assess the parties' initial contributions, the impact of the wife's post-separation inheritance, and how to deal with any "add backs" in the property pool.

Cronin J ordered that the husband and wife have equal shared parental responsibility for the children. However, the court did not order the week-about arrangement sought by the husband, finding it not to be in the children's best interests based on the medical evidence presented. Instead, a detailed schedule of living arrangements was established, with the children primarily living with the wife but spending significant time with the husband on alternate weekends and during specific periods. For the property settlement, the court ordered the husband to pay a sum to the wife and each party was to retain other assets in their possession, save for superannuation. The husband was also ordered to indemnify the wife for a capital gains tax liability, and a specific sum was to be paid to the wife from the husband's superannuation interest.

Orders

Orders of the court

1.

That the husband and wife have equal shared parental responsibility for the children C born … September 1999 and N born … September 2001.

2.

That the children live with the husband as follows:

(a) in respect of C, during each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday morning;

(b) in respect of N, during each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Monday;

(c) in respect of C and N in the week not referred to in paragraph 2(a) in (b), from after school on Thursday until 7.30pm that evening;

(d) in respect of C and N, for one half of each school term holiday by agreement and failing agreement, the first half in each even numbered year and the second half in each odd numbered year;

(e) in respect of C and N, for one half of the long summer school holidays but on an alternating week-about basis for the 2012-2013 holidays and thereafter, for one half by agreement and failing agreement, the first half in even numbered years and the second half in odd numbered years; and

(f) in respect of C and N, during Father’s Day in each year from 6.00pm on the Saturday before Father’s Day until the commencement of school on the Monday after Father’s Day.

3.

That the children otherwise live with the wife at all other times.

4.

That the husband’s time under paragraph 2(a), (b) and (c) of these orders is suspended during school holidays and the long summer holidays and will resume immediately thereafter as if it had not been so suspended.

5.

That the husband’s time under paragraphs 2(a), (b) and (c) of these orders shall be suspended from 6.00pm on the Saturday before Mother’s Day until the commencement of school on the Monday after Mother’s Day in each year.

6.

That for the purposes of these orders, if the changeover does not occur at school, the father collect the children at the commencement of the time from the wife’s residence and the wife collect the children from the husband’s residence at the conclusion of the allotted time.

AND THE COURT NOTES

A. That no provision is made under these orders for the birthdays of the children or the parents on the assumption that the parties will make a bona fide endeavour to resolve those issues themselves having regard to the fact that each has equal shared parental responsibility.

7.

That by way of settlement of property

(a) the husband pay to the wife $103,292 within 30 days of the day of these orders; and

(b) save as to superannuation, each party otherwise retain to the exclusion of the other, all other assets in their respective possessions as at the time of these orders.

8.

That the husband be responsible for and indemnify the wife in respect of the capital gains tax liability referred to in the proceedings.

9.

That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the interest of the husband in S Superannuation, the wife shall be entitled to be paid a base sum of $78,924 out of the interest of the husband and there shall be a corresponding reduction in the entitlement of the husband.

10.

That this order binds the S Superannuation Trustee.

11.

That all applications are otherwise dismissed save as to questions of costs.

12.

That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 24 May 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 7 June 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers

13.

That all material produced under subpoenae can be returned to the recipient of the subpoena forthwith.

14.

That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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