FAMILY COURT OF AUSTRALIA
| ELIAS & ELIAS | [2018] FamCA 244 |
| FAMILY LAW – CHILDREN – Best interests – Sole parental responsibility – Where the relationship between the parties is poor – Credit – Where both parties have serious mental health issues – Findings of family violence – Where both parents pose some risk to the child – Where the child has always lived with the mother – Where the child would be at an unacceptable risk in the unsupervised care of the father – Where regular telephone communication between the child and father found not to be in the best interests of the child – Restraint on relocation – Where the wife is free to change her location of residence as long as orders are complied with – Ordered that the mother have sole parental responsibility for the child – Ordered that the child live with the mother – Order for the father to spend supervised time with the child. FAMILY LAW – PROPERTY – Sale of property – Where the wife made an application seeking an order permitting her to sell her property to cover legal fees – Where consent order was made to sell the wife’s property – Where the wife sought leave to reopen her case in the substantive proceedings to provide evidence about the proceeds of the sale of the wife’s property, discharge of the mortgage and repayment of a loan – Leave granted. FAMILY LAW – PROPERTY – Settlement proceedings – Where it was found to be just and equitable to make an order under s 79 of the Family Law Act 1975 (Cth) – Contributions at time of cohabitation – Where both parties found to have made direct financial contributions – Where the wife has been the major income earner – Where both parties have made significant contributions to the welfare of the family – Where wife’s contribution in this regard was greater than that of the husband – Contributions following separation – Contributions fall significantly in favour of the wife – Contributions assessed at 57 per cent to the wife and 43 per cent to the husband – Section 75(2) factors Where both parties have serious mental health conditions – Where both parties likely to earn current level of income for the foreseeable future – Where the wife is the primary caregiver for the child and will continue to have major financial responsibility for the child – Where the husband pays only modest child support – Where there is a substantial level of personal debt of both parties – Adjustment of 10 percent made in favour of the wife – Wife to receive 67 per cent of available property and superannuation and husband 33 per cent. | |
| Family Law Act 1975 (Cth): ss 4AB, 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 69ZT, 75(2), 79(2) Surveillance Devices Act 2007 (NSW) | |
| A v A (1998) FLC 92-800 |
Continue reading ELIAS & ELIAS
Sign in free to access the full text
- AGLC
- ELIAS & ELIAS [2018] FamCA 244
- Case
- [2018] FamCA 244
- Decision Date
CaseChat Overview and Summary
The court was required to determine, in relation to parenting, who should have sole parental responsibility for the child, where the child should live, and the nature and extent of time the child should spend with the father, considering the risks each parent posed to the child and the child's established living arrangements. In the property proceedings, the court needed to make orders that were just and equitable under section 79 of the *Family Law Act 1975* (Cth), assessing the contributions of each party to the marriage and considering relevant section 75(2) factors. The court also granted the wife leave to reopen her case to provide evidence regarding the proceeds of the sale of her property, the discharge of a mortgage, and the repayment of a loan.
Regarding parenting, Johnston J found that the child would be at an unacceptable risk in the unsupervised care of the father. Consequently, the mother was granted sole parental responsibility, and the child was ordered to live with the mother. The father was ordered to spend supervised time with the child, with specific arrangements detailed for the initial period and thereafter, including the involvement of professional supervision services and the husband's sister. The court also made orders for both parents to continue attending psychological counselling and for the husband to complete a program addressing responsibility. In the property division, after assessing contributions during cohabitation and post-separation, the court found that the wife's contributions were significantly greater. Applying section 75(2) factors, including the wife's role as primary caregiver and the parties' mental health conditions, an adjustment of 10% was made in favour of the wife.
The final property orders stipulated that the wife would receive 67% of the available property and superannuation, and the husband 33%. Specific orders were made for the transfer of funds and interests in property, including the M Street property, with provisions for the wife to act as Trustee for Sale if the husband failed to comply with payment obligations. The court also ordered the husband to pay one half of the costs of the Independent Children’s Lawyer, which he had already done. The wife's application for costs related to reopening her case was dismissed.
Orders
Orders of the court
Parenting
The following parenting orders are made in relation to the child X born on … 2012 (“the child”):
1.
All previous parenting orders are discharged.
Parental Responsibility
2.
The wife shall have sole parental responsibility for the child.
Live With
3.
The child shall live with the wife.
Time Spent
4.
The child shall spend time with the husband as follows:
(4.1) for a period of three months from the date of these orders, each alternate Sunday for six hours commencing on 29 April 2018 to be supervised by C Group (or other professional contact supervision service);
(4.2) Thereafter:
(4.2.1) each alternate Sunday for six hours;
(4.2.2) on Father’s Day for six hours;
(4.2.3) on Christmas Day in even numbered years for six hours;
(4.2.4) on New Year’s Day in odd numbered years for six hours;
(4.2.5) on the child’s birthday and on the husband’s birthday for three hours as agreed but failing agreement from 4.00 pm to 7.00 pm;
all time spent to be supervised by C Group (or other professional contact supervision service) or the husband’s sister, Ms D Elias or a combination of both.
5.
All occasions of time spent shall be as agreed between the husband and the wife but failing agreement shall be from 10.00 am to 4.00 pm unless otherwise specified in these orders.
6.
The husband shall be solely responsible for all associated costs of C Group supervision services (or other professional contact supervision service).
7.
For the purposes of the child’s changeover:
(7.1) C Group is to collect the child from the wife’s residence at the commencement of periods with the husband and return him to the wife’s residence at the conclusion of such periods (the Court noting the location of the wife’s residence is to remain confidential);
(7.2) the husband’s sister Ms D Elias is to collect the child from the bandstand in Suburb E Square at the commencement of periods with the husband and the wife is to collect the child from Ms D Elias at the bandstand in Suburb E Square at the conclusion of such periods.
8.
Within 14 days the wife is to provide to Ms Elias a letter sent by express post to F Street, Suburb G with confirmation of her mobile phone number and her email address (with any changes to such number and email address to be notified in writing to Ms Elias).
9.
The wife shall be at liberty to suspend the child’s time with the husband up to four occasions each year provided that:
(9.1) she gives the husband at least 14 days’ notice; and
(9.2) the times she nominates do not occur on more than two consecutive occasions.
10.
The husband continue to attend his psychologist Mr H for a further period of 12 months or other such period as may be recommended by Mr H and at a frequency as recommended by Mr H. In the event that Mr H becomes unavailable to provide such services, the husband is to engage with a psychologist recommended by either Mr H or the J Clinic.
11.
The wife continue to attend upon her counsellor Mr K for a further period of 12 months or such other period as may be recommended by Mr K and at a frequency as recommended by Mr K.
12.
The wife and the husband shall not denigrate or insult the other to or within the hearing of the child and they shall use their best endeavours to ensure that no other person does so.
13.
Within 14 days of these orders, the husband shall contact L Group NSW on … to enrol in the ‘Taking Responsibility’ Program and to attend and complete the course.
14.
BY CONSENT the husband shall pay one half of the costs of the Independent Children’s Lawyer and the Court notes that the husband has paid this in the amount of $16,771.05.
15.
The wife shall pay one half of the costs of the Independent Children’s Lawyer, unless payment is waived, and payment shall be suspended for three months.
16.
That pursuant to s 62B of the Family Law Act 1975 (Cth) (“the Act”), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
17.
That pursuant to s 65DA(2) of the Act, the particulars of the obligations these orders create and the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Property
18.
That the husband and the wife forthwith do all things and sign all documents necessary to cause all funds in the controlled monies account with the Commonwealth Bank of Australia in the name of the wife, the signatory being her solicitor, Mr David Barry, to be paid to the wife.
19.
That within 60 days the husband pay to the wife the sum of $84,932.
20.
That upon receipt of such payment and the funds in the controlled monies account the wife shall provide the husband with a Withdrawal of Caveat in respect of the property at M Street, Suburb E (“the M Street property”).
21.
That in the event that the husband fails to comply with Order 19 above the wife shall be appointed Trustee for Sale of the M Street property and the following shall apply:
(21.1) the M Street property shall vest in the wife as Trustee for Sale, she shall have exclusive possession thereof and the husband shall forthwith vacate the property;
(21.2) the wife as Trustee for Sale shall hold the said property on trust to sell it at the best price reasonably able to be obtained;
(21.3) the wife shall have all the powers of a Trustee for Sale of real estate appointed pursuant to the laws of New South Wales including or in addition thereto, the wife is empowered to do all things, including signing all documents necessary to effect a sale of the M Street property including but not limited to:
(a) determining whether the sale is to be by private treaty or auction;
(b) determining the real estate agent or agents with whom to list the property;
(c) determining the sale price, including the listing price from time to time, or the reserve price in the event of sale by auction; and
(d) nominating the conveyancing solicitor, such solicitor to be agreed upon by the husband and wife within seven days of such nomination, and failing agreement, to be appointed by the Real Estate Institute of New South Wales.
(21.4) the wife shall pay the proceeds of sale as follows:
(a) all costs and expenses of the sale of the M Street property including legal costs and disbursements, agent’s commission, valuer’s fees, advertising and sale expenses;
(b) all amounts necessary to discharge the mortgage, including any arrears;
(c) all amounts necessary to discharge all outstanding rates, electricity, amounts incurred in preparing the said property for sale or other service accounts in respect of any service provided for the property outstanding as at the date of completion of the sale of the property;
(d) to reimburse each of the parties for all payments made by each of them in preparing the property for sale;
(e) to the wife the sum of $84,932 plus interest calculated in accordance with the Family Law Rules 2004 (Cth) as from the date of default by the husband to the date of receipt by the wife; and
(f) to the husband, the balance then remaining.
22.
In default of either or both the husband and the wife executing all such documents as may be necessary to comply with these orders within the time provided:
(a) a Registrar of this Court shall be authorised to execute all such documents on behalf of either or both parties; and
(b) if either party procures compliance with this order by obtaining execution of documents pursuant to this order, then the party procuring such execution of documents will be indemnified by the other party for his or her costs and expenses incurred in obtaining such compliance.
23.
That the husband forthwith do all things and sign all documents necessary to transfer to the wife his interest in the joint Westpac account …94.
24.
That the husband and the wife are declared the sole owner of all other items of property and superannuation in their possession and/or control respectively.
25.
That all exhibits be released.
26.
That both parties have leave to relist these proceedings in relation to implementation of the property orders by arrangement with the Associate to Johnston J.
Costs
27.
That the wife’s application that the husband pay her costs of her application to reopen her case be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.