ELLIS & MURPHY - [2018] FamCA 468

FAMILY COURT OF AUSTRALIA

ELLIS & MURPHY

[2018] FamCA 468

FAMILY LAW – CHILDREN – With whom a child lives – International Relocation – Where the parties agree the children should live with the mother but disagree over the mother relocating to the UK with the children – Concluded the mother should remain living with the children in Australia – Ordered the children live with the mother – Ordered the children spend substantial time with the father – Ordered the parties may take the children from Australia on international holidays

FAMILY LAW – CHILDREN – Parental Responsibility – Where an order for equal shared parental responsibility would not be in the children’s best interests – Where the parties’ conflict is too entrenched for them to negotiate and reach consensus on important issues related to the children – Concluded the parties have not been involved in family violence – Ordered the mother shall have sole parental responsibility for the children

FAMILY LAW – PROPERTY SETTLEMENT – just and equitable – Where the parties agree to retain their own superannuation interests and no splitting order should be made – Where the parties agree their financial and non-financial contributions during cohabitation were equivalent – Concluded the father’s post-separation financial contributions redressed the imbalance of the parties’ initial capital contributions and their overall contributions should be regarded as equivalent – Adjustment in the mother’s favour – Concluded the parties’ shares in the non-superannuation assets should be 60 per cent for the mother and 40 per cent for the father

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 65DAA, 65DAC, 65Y, 90SF, 90SM

AMS v AIF (1999) 199 CLR 160
Bevan & Bevan (2013) 49 Fam LR 387
Chorn v Hopkins (2004) FLC 93-204
Hepburn & Noble (2010) FLC 93-438
Malcolm v Monroe [2011] FLC 93-460
Marriage of Coghlan (2005) 33 Fam LR 414
McCall v Clark (2009) FLC 93-405
Sampson v Hartnett (No.10) (2007) FLC 93-350
Stanfordv Stanford (2012) 247 CLR 108
U v U (2002) 211 CLR 238
Zanda & Zanda [2014] FamCAFC 173

APPLICANT:

Mr Ellis

RESPONDENT:	Ms Murphy
FILE NUMBER:	NCC	1188	of		2015

DATE DELIVERED:

22 June 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

22, 23, 24 & 25 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Bithrey

SOLICITOR FOR THE RESPONDENT:

Kekeff & Associates Solicitors

Orders

Parenting Orders

All former orders relating to the following children (“the children”) are discharged:
(a)X, born … 2010; and
(b)Y, born … 2014.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The parties shall do all things reasonably necessary to ensure the children spend time with the father:
(a)In the Summer school holidays:
(i)For the first portion of the holidays in 2018/2019, commencing at 9.00 am on the second day after the last day of school term and concluding at 12.00 noon…

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 ELLIS & MURPHY

Details

AGLC: ELLIS & MURPHY [2018] FamCA 468
Case: [2018] FamCA 468
Decision Date: 22 June 2018

CaseChat Overview and Summary

In the matter of *Ellis & Murphy*, Austin J of the Family Court of Australia considered parenting and property settlement disputes between the parties concerning their two children. The primary parenting dispute involved the mother's desire to relocate with the children to the United Kingdom, which the father opposed. The property settlement dispute concerned the division of various assets, including real estate, businesses, and superannuation.

The court was required to determine whether an international relocation of the children to the UK was in their best interests, and consequently, with whom the children should live and what parental responsibility arrangements should be in place. In relation to property, the court needed to make orders for a just and equitable distribution of the parties' financial resources, considering their contributions and post-separation financial conduct.

Regarding parenting, Austin J concluded that the mother should remain living with the children in Australia, thereby refusing the proposed international relocation. The court found that the parties' entrenched conflict rendered an order for equal shared parental responsibility inappropriate, and accordingly, ordered that the mother have sole parental responsibility. The children were ordered to live with the mother and spend substantial time with the father, with provisions for international holidays. In the property settlement, the court found the parties' financial and non-financial contributions to be equivalent, with the father's post-separation contributions redressing any initial imbalance. Consequently, the non-superannuation assets were to be divided 60 per cent in favour of the mother and 40 per cent in favour of the father. The father was ordered to pay the mother a sum of $225,822, and specific orders were made regarding the sale of a business and the division of its proceeds, as well as the ownership of other assets.

Orders

Orders of the court

Parenting Orders

All former orders relating to the following children (“the children”) are discharged:

(a) X, born … 2010; and

(b) Y, born … 2014.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

The parties shall do all things reasonably necessary to ensure the children spend time with the father:

(a) In the Summer school holidays:

(i) For the first portion of the holidays in 2018/2019, commencing at 9.00 am on the second day after the last day of school term and concluding at 12.00 noon on 5 January; and

(ii) For the second portion of the holidays in 2019/2020, commencing at 12.00 noon on 5 January and concluding at 5.00 pm on the last day before the first day of school in the new term.

(b) Until the youngest child commences school:

(i) During school terms, each alternate week from 5.30 pm on Thursday until 6.00 pm on Sunday, commencing on Thursday 28 June 2018 this term and on the first Thursday of each new term;

(ii) For the first half of the Autumn and Spring school holidays, commencing at 5.30 pm on the last day of school term and concluding at 5.30 pm on Saturday on the middle weekend of the holidays;

(iii) For the first half of the 2018 Winter school holidays, commencing at 5.30 pm on the last day of school term and concluding at 5.30 pm on Saturday on the middle weekend of the holidays;

(iv) If the youngest child does not start school until 2020 then, subject to Order 6 hereof, for the first half of the 2019 Winter school holidays, commencing at 5.30 pm on the last day of school term and concluding at 5.30 pm on Saturday on the middle weekend of the holidays;

(i) During school terms, each alternate week from the conclusion of school on Thursday until the commencement of school on Monday, commencing on the first Thursday of each new term;

(ii) For the first half of the Autumn and Spring school holidays, commencing at 5.30 pm on the last day of school term and concluding at 5.30 pm on Saturday on the middle weekend of the holidays;

(iii) Subject to Order 6 hereof, for the first half of the Winter school holidays, commencing at 5.30 pm on the last day of school term and concluding at 5.30 pm on Saturday on the middle weekend of the holidays;

Orders 3 and 4 hereof are suspended between 9.00 am and 5.00 pm each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

Orders 4(b)(iv) and 4(c)(iii) are suspended if the mother provides the father with:

(a) Not less than two months written notice of her intention to take the children to the UK for the Winter school holidays; and

(b) Written confirmation of the dates upon which they will depart from and return to Australia.

Pursuant to s 65Y of the Family Law Act, the parties are entitled to take the children from Australia on international holidays, provided such travel arrangements are consistent with these orders.

For the purpose of implementation of Orders 3-5 inclusive, the parties shall respectively ensure the children’s:

(a) Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

(b) Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

While the mother is living in Australia, the parties shall take all reasonable steps to ensure the children communicate privately by telephone with:

(a) The father each Tuesday at 6.00 pm while the children are living with the mother.

(b) The mother each Wednesday at 6.00 pm while the children are spending time with the father on during school holiday periods.

10.

When the mother is holidaying with the children in the UK, the parties shall take all reasonable steps to ensure the children communicate privately with the father by audio-visual link each Tuesday at 9.00 am Greenwich Mean Time.

11.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

12.

The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

13.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

14.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

Property Settlement Orders

15.

The father shall pay to the mother the sum of $225,822 within six weeks of the date of these orders.

16.

The father is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier Lot … in DP …, being the property more commonly known as C Street, Suburb D, NSW (“the property”), and the mother shall do all such things and sign all such documents as may be necessary to transfer all her right, title, and interest in the property to the father, subject to:

(a) His payment to her of the sum in satisfaction of Order 15;

(b) His discharge of the existing home loan, secured by mortgage over the property;

(d) His indemnity of the mother against all rates, taxes, statutory charges, and other outgoings and liabilities affecting or relating to the property; and

(e) His indemnity of the mother against any and all liability secured over or related to his E Town and F Town businesses.

17.

The father is declared the sole legal and beneficial owner of the E Town business, subject to:

(a) His payment to her of the sum in satisfaction of Order 15;

(b) His discharge of the existing home loan, secured by mortgage over the property;

(d) His indemnity of the mother against all rates, taxes, statutory charges, and other outgoings and liabilities affecting or relating to the property; and

(e) His indemnity of the mother against any and all liability secured over or related to his E Town and F Town businesses.

18.

The father shall forthwith do all such acts and things necessary to sell the F Town business for the best price obtainable.

19.

For the purpose of implementing Order 18, the father:

(a) Is restrained from removing any equipment from the business.

(b) Is restrained from acting or omitting to act in a way calculated or likely to reduce the value of the business pending its sale.

(i) The name of the business broker and solicitor he retains to act on the sale;

(ii) The listing price;

(iii) The sale price;

(iv) The date of exchange of contract; and

(v) The date of completion of the contract.

(d) Shall provide the mother with copies of:

(i) The contract entered with the purchaser;

(ii) The proposed settlement statement; and

(iii) The final settlement statement

20.

Upon completion of the sale of the F Town business pursuant to Order 18, the father shall ensure the proceeds of sale are disbursed as follows:

(a) First, to pay all costs, commissions, and expenses of the sale;

(b) Second, to pay the mother 60 per cent of the balance; and

21.

The father is declared the sole legal and beneficial owner of all shares in G Pty Ltd (the trustee of the Ellis Family Trust) and shall indemnify the mother against any and all liability to or borne by the corporation.

22.

The father shall forthwith do all acts and things necessary to transfer to the mother 215,000 points from his Qantas Frequent Flyer account.

23.

Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed in the possession of the superannuant

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to all real and personal property in their respective possession and any debts in their respective sole names, including any individual liability for capital gains tax arising out of the sale by the parties of assets pursuant to these orders.

Miscellaneous Orders

24.

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at E Town is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act.

25.

Costs are reserved for 28 days.

26.

Any and all other outstanding applications are 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

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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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