ELLARD & ELLARD - [2018] FCCA 1539

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLARD & ELLARD

[2018] FCCA 1539

Catchwords:
FAMILY LAW – Parenting – whether the mother suffers from a psychiatric condition that affects her care of 6 and 4 year-old children – with whom the children should live.

PROPERTY – Just and equitable settlement – whether the husband owes his brother $90,000.

Legislation:

Family Law Act 1975, ss.75, 64B, 60CA, 60CC, 79

Cases cited:

Mazorski v Albright (2008) 37 FLR 518

Tait & Dinsmore [2007] FamCA 1383

Stanford v Stanford (2012) FLC 93-518
Bevan & Bevan [2013] FamCAFC 116

Applicant:

MR ELLARD

Respondent:

MS ELLARD

File Number:

DGC 657 of 2015

Judgment of:

Judge Small

Hearing dates:

1, 2, 3 and 16 November 2017 and 21 December 2017

Date of Last Submission:

21 December 2017

Delivered at:

Dandenong

Delivered on:

18 June 2018

REPRESENTATION

Counsel for the Applicant:

Ms Jenkinson

Solicitors for the Applicant:

Duffy & Simon

Counsel for the Respondent:

Self-Represented

Solicitors for the Respondent:

Self-Represented

Counsel for the Independent Children's Lawyer:

Mr S. Taghdir

Solicitors for the Independent Children's Lawyer:

Taft Lawyers

ORDERS

Parenting Orders

All previous parenting orders in relation to the children [X] born 2009 and [Y] born 2010 (“the children”) are hereby discharged.
The parents shall have equal shared parental responsibility for making major decisions about the long term care, welfare and development of the children and each shall have day-to-day responsibility for the children when they are in their respective care.
The children shall live with the father.
The children shall spend time and communicate with the mother:
(a)during school terms on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday commencing on 22 June 2018;
(b)for half of each school term holiday period by agreement between the parties in writing and failing agreement, from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in odd-numbered years, and from 6:00 p.m. on the second Saturday to the commencement of school on the first day of the next school term in even-numbered years;
(c)for half of the long summer school holidays by agreement and failing agreement with the mother for the first half in 2018-2019 and in each alternate year thereafter and the second half in 2019-2020 and in each alternate year thereafter;
(d)for Christmas by agreement between the parties and failing agreement, from 4:00 p.m. on Christmas Eve to 12 noon on Christmas Day in even-numbered years and from 12 noon on Christmas Day to 4:00 p.m. on Boxing Day in odd-numbered years
(e)on the weekend of Mother’s Day each year from 6:00 p.m. on the Saturday evening to the commencement of school on the Monday if the children would not normally be spending that weekend with the mother, and the mother’s time with the children shall suspend, if necessary, from 6:00 p.m. on the evening before Father’s Day each year if the children would otherwise be spending that weekend with the mother…

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 ELLARD & ELLARD

Details

AGLC: ELLARD & ELLARD [2018] FCCA 1539
Case: [2018] FCCA 1539
Decision Date: 18 June 2018

CaseChat Overview and Summary

In the matter of *Ellard & Ellard*, Judge Small of the Federal Circuit Court of Australia considered parenting and property disputes between the parents of two young children. The parenting dispute concerned the mother's alleged psychiatric condition and its impact on her care of the children, and with whom the children should live. The property dispute involved the just and equitable settlement of the parties' assets and liabilities, including a debt the husband allegedly owed his brother.

The court was required to determine the best interests of the children in relation to their living arrangements and parental responsibility, and to make orders regarding the division of the parties' property. Specifically, the court had to assess the mother's mental health and its implications for the children's welfare, and to decide whether the husband's alleged debt to his brother should be factored into the property settlement.

Judge Small ordered that the parents have equal shared parental responsibility for the children, but that the children shall live with the father. The mother was granted specific time with the children, including alternate weekends, half of school holidays, and specific arrangements for Christmas and birthdays, with detailed provisions for communication. The court also made orders restraining both parties from denigrating the other in the presence of the children and from discussing the proceedings with them. In relation to property, the husband was ordered to pay the wife $14,082 within 42 days, in exchange for which the wife was to withdraw a caveat over a property which the husband would retain. If the payment was not made, the property was to be sold, with proceeds applied first to sale costs, then to discharge encumbrances, then to the outstanding payment to the wife with interest, and the remainder to the husband. The husband was to have occupation of the property pending payment or sale and was responsible for outgoings. Other property was to be divided with specific proportions for joint bank accounts, and each party was to retain their sole property and be liable for their own debts, foregoing claims to inheritances or superannuation.

Orders

Orders of the court

Parenting Orders

All previous parenting orders in relation to the children [X] born 2009 and [Y] born 2010 (“the children”) are hereby discharged.

The parents shall have equal shared parental responsibility for making major decisions about the long term care, welfare and development of the children and each shall have day-to-day responsibility for the children when they are in their respective care.

The children shall live with the father.

The children shall spend time and communicate with the mother:

(a) during school terms on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday commencing on 22 June 2018;

(b) for half of each school term holiday period by agreement between the parties in writing and failing agreement, from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in odd-numbered years, and from 6:00 p.m. on the second Saturday to the commencement of school on the first day of the next school term in even-numbered years;

(c) for half of the long summer school holidays by agreement and failing agreement with the mother for the first half in 2018-2019 and in each alternate year thereafter and the second half in 2019-2020 and in each alternate year thereafter;

(d) for Christmas by agreement between the parties and failing agreement, from 4:00 p.m. on Christmas Eve to 12 noon on Christmas Day in even-numbered years and from 12 noon on Christmas Day to 4:00 p.m. on Boxing Day in odd-numbered years

(e) on the weekend of Mother’s Day each year from 6:00 p.m. on the Saturday evening to the commencement of school on the Monday if the children would not normally be spending that weekend with the mother, and the mother’s time with the children shall suspend, if necessary, from 6:00 p.m. on the evening before Father’s Day each year if the children would otherwise be spending that weekend with the mother pursuant to these orders.

(f) On each of the children’s birthdays from after school to 7:30 p.m. should the birthday fall on a school day in even-numbered years, and from after school on the day prior to the birthday to the commencement of school or 10:00 a.m. on the birthday in odd-numbered years, and, should the birthday not fall on a school day, for four hours by agreement and failing agreement from 10:00 a.m. to 2:00 p.m. in even-numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;

(g) On the mother’s birthday each year from after school to 7:30 p.m. should the birthday fall on a school day, and, should the birthday not fall on a school day, for four hours by agreement and failing agreement from 10:00 a.m. to 2:00 p.m. in even-numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years; and the mother’s time shall suspend on the father’s birthday each year for four hours by agreement should it fall on a non-school day and failing agreement from 10:00 a.m. to 2:00 p.m. in even-numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;

(h) By telephone, Facetime, Skype or other electronic means:

(i) at any time at the instigation of the children or either of them and the father shall facilitate that time by providing the children or either of them with a charged and working telephone, tablet or computer and shall place the call for them until such time as they are able to place the call themselves;

(ii) at the mother’s instigation on two occasions per week by agreement between the parties in writing and failing agreement between 6:00 p.m. and 6:30 p.m. on each Tuesday and Friday that the children are not in the mother’s care, with the mother to place the call and the father shall ensure that the children have access to a charged and working telephone, tablet or computer and that they are available to take the call;

(iii) at other times by agreement between the parties in writing;

(i) At other times by agreement between the parties from time to time.

The father shall ensure that the children’s school makes available to the mother, at her cost if any, all school reports, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by the children or either of them and the mother shall be at liberty to attend parent teacher interviews and all sporting or cultural events usually attended by parents.

The parties shall each inform the other of any serious illness or injury suffered by the children or either of them which requires hospitalisation or specialist treatment while they are in their respective care, and they shall authorise any treating medical or allied practitioners who are caring for the children or either of them to speak to the other about the child’s treatment.

The parties and their servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the children and from permitting any other person to do so;

(b) discussing these proceedings with or in the presence or hearing of the children (save to explain any changes in their living circumstances to them) and from permitting any other person to do so;

(d) allowing the children to read, or have read to them, any portion of the Court’s Reasons for Judgment in this matter.

Property Orders

Within 42 days of the date of these orders (“the due date”), the husband shall pay to the wife the sum of $14,082 (fourteen thousand and eighty two dollars) (“the payment”).

Contemporaneously with the payment, the wife shall provide to the husband a signed and registerable Withdrawal of Caveat in relation to the caveat she holds over the real property situate at and known as Property A (“the real property”) and the husband shall retain the real property for his own benefit absolutely.

10.

In the event that the payment is not made by the due date, the husband shall do all such acts and things and sign all such documents as may be necessary to place the real property on the market for sale (“the sale”), and the proceeds of the sale shall be applied as follows:

(a) first to pay all costs and commissions of the sale;

(b) second to discharge any registered encumbrance over the real property;

(c) third so much of the payment as is outstanding to the wife together with interest at the rate of 8.5% per annum from the due date to the date of payment; and

(d) the remainder to the husband.

11.

Pending the payment, or completion of the sale, the husband shall have right of occupation of the real property and shall be responsible for all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.

12.

Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these any subsequent Orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;

(b) monies standing to the credit of the parties in any joint bank account shall be divided between the parties in the proportion of 70 per cent to the husband and 30 per cent to the wife;

(d) each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

(e) each party forgoes any claim they may have to any inheritances or superannuation to which the other party is entitled either presently or in the future; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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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