Eacret & Eacret - [2021] FedCFamC1F 300

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Eacret & Eacret [2021] FedCFamC1F 300

File number(s): SYC 4450 of 2021

Judgment of: REES J

Date of judgment: 14 December 2021

Catchwords: FAMILY LAW – INTERIM PARENTING – Independent Children’s Lawyer appointed to represent the interests of the 16 year old child.
FAMILY LAW – INTERIM FINANCIAL RELIEF – Where the husband has access to income from various corporate entities and trusts in his legal possession or under his control – Orders for the husband to pay the wife $285,000 by way of interim costs – Orders for the husband to meet the wife’s application for spousal maintenance and child support with the option of those payments being made by way of trust distributions.
FAMILY LAW – CHILD SUPPORT DEPARTURE ORDER – Where the husband’s sole control of the income of the marriage and he’s being able to notionally distribute income to the wife so as to distort the application for child support constitutes a “special circumstance” – Application for child support departure order granted.

Legislation: Family Law Act 1975 (Cth) ss 79, 83(2), 117(2A)

Cases cited:
Gyselman and Gyselman (1992) FLC 92-279

Philippe and Philippe (1978) FLC 90-433

Savery and Savery (1990) FLC 92-131

Division: Division 1 First Instance

Number of paragraphs: 90

Date of hearing: 9 December 2021

Place: Sydney

Counsel for the Applicant: Mr Kearney SC

Solicitor for the Applicant: Pearson Emerson Family Lawyers

Counsel for the Respondent: Mr Gould

Solicitor for the Respondent: Watts McCray
ORDERS

SYC 4450 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS EACRET

Applicant

AND:
MR EACRET

Respondent

ORDER MADE BY:

REES J

DATE OF ORDER:

14 DECEMBER 2021

THE COURT ORDERS, PENDING FURTHER ORDER:
1.That the wife have sole occupation of the premises at B Street, Suburb C.
2.That pursuant to Section 68L of the Family Law Act 1975 (Cth), an Independent Children's Lawyer shall be appointed to represent the child the subject of these proceedings, namely:
X born … 2005.
3.That the Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for the appropriate representation of the child and for that purpose:
(a)The Court advise the Senior Solicitor, Family Law Litigation Section of Legal Aid NSW of this order; and
(b)Each party make available to Legal Aid NSW (Sydney Office) Forthwith copies of all applications and affidavits upon which that party relies and all relevant reports and documents.

4.That the mother and father shall facilitate the attendance of the child upon the Independent Children’s Lawyer on dates and at times as requested by that representative.
5.That upon their appointment, and after filing of an Address for Service, the Independent Children’s Lawyer may inspect and, if permitted, copy all documents previously produced to the court in the proceedings and released to the parties.
6.That within 30 days the husband pay to the wife the sum of $285,000 by way of interim property settlement.
7.That the husband pay to the…

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 Eacret & Eacret

Details

AGLC: Eacret & Eacret [2021] FedCFamC1F 300
Case: [2021] FedCFamC1F 300
Decision Date

CaseChat Overview and Summary

Ms Eacret and Mr Eacret were married in 1996 and separated in March 2020. The wife filed an Initiating Application in June 2021 in which she sought a suite of interim orders. In summary, the wife sought orders in relation to interim parenting, sole occupation of the former matrimonial home, interim costs, spousal maintenance, preservation of assets, and a child support departure order. The husband opposed the wife’s applications for spousal maintenance, interim costs, and a child support departure order. The court found that there was no evidence to support the making of personal protection orders against the husband and dismissed the wife’s applications for interim parenting orders. The court made an order that the wife have the right to occupy the premises because the husband refused to give an undertaking not to disturb her occupation. The court found that the husband has ample property available to pay the sum sought by the wife in relation to interim costs. The court found that the husband had the capacity to pay the fixed outgoings as the wife sought in relation to spousal maintenance and made an order for the husband to pay spousal maintenance of $411 per week. The court found that the wife had not demonstrated any need for orders to preserve the assets of the marriage and dismissed those applications. The court found that there were special circumstances in this case which set it apart from other cases and made an order for the husband to pay periodic child support of $530 per week together with education expenses, health insurance premiums, medical expenses, and mobile phone charges as sought by the wife.

The court considered the evidence and submissions of both parties and made the following orders: 1) That the wife have sole occupation of the premises at B Street, Suburb C; 2) An Independent Children’s Lawyer shall be appointed to represent the child the subject of these proceedings; 3) The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for the appropriate representation of the child; 4) The husband pay to the wife spousal maintenance in the sum of $411 per week; 5) The husband pay to the wife interim costs in the sum of $285,000 within 30 days; 6) The husband pay by way of periodic child support for the child the sum of $530 per week; and 7) The husband shall pay or cause to be paid, as they fall due, various expenses including mortgage payments, land tax payments, water and council rates, building insurance, and costs of roadside membership, registration, insurance and maintenance of the vehicle. The court also made orders relating to personal protection orders against the husband, preservation of assets, child support departure, mandatory injunctions, and how spousal maintenance and child support are to be paid.

Orders