FALCONE & FALCONE - [2011] FMCAfam 138

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FALCONE & FALCONE

[2011] FMCAfam 138

FAMILY LAW – Parenting – orders made predominantly by consent for the parties’ son to live with the wife and spend significant and substantial time with the husband.

FAMILY LAW – Property – husband’s significant initial contribution found to attract a 15 per cent loading in his favour – wife’s future needs pursuant to section 75(2) factors found to attract a 15 per cent loading in her favour – orders made for an equal division of the parties’ property and for there to be a super splitting order in the wife’s favour with a base amount calculated on the basis that each party retain 60 per cent of their current superannuation entitlements.

Family Law Act 1975, ss.75, 79

Williams & Williams [1985] HCA 52
Norbis v Norbis (1986) FLC 91-712
Pierce and Pierce (1999) FLC 92-844
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
B & B [2005] FamCA 624
BAR and JMR (2005) FLC 93-231
C v C (2005) FLC 93-220
L v L (2006) FLC 93-254
Kitman & Kitman [2008] FamCAFC 166
Pera & Pera (2008) FLC 93-372

Applicant:

MR FALCONE

Respondent:

MS FALCONE

File Number:

MLC 8567 of 2009

Judgment of:

Bender FM

Hearing dates:

16, 17 & 18 February 2011

Date of Last Submission:

18 February 2011

Delivered at:

Melbourne

Delivered on:

11 March 2011

REPRESENTATION

Counsel for the Applicant:

Ms Phelan

Solicitors for the Applicant:

Kempsons Lawyers

Counsel for the Respondent:

Ms Sleeth

Solicitors for the Respondent:

Borchard & Moore

Counsel for the Independent Children’s Lawyer:

Ms Agresta

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

ORDERS

PARENTING – BY CONSENT SAVE FOR ORDERS 5(c), 5(d), 5(e) & 6 WHICH ARE ORDERS OF THE COURT

The wife and husband have equal shared parental responsibility for the child [X] born [in] 2006 ("[X]") save in respect of:
(a)education; and
(b)non urgent medical procedural issues.
In respect of matters touching on [X]'s education, including choice of primary and secondary schooling the parties :
(a)provide each other with a written proposal/position and in the case of choice of schooling such proposal be provided by 30 June in the year prior to the commencement of prep year and first year of secondary school;
(b)on exchanging proposals the parties make a genuine effort to consult on the issue to reach agreement;
(c)in the event that no agreement is reached the parties attend upon a mediator at their joint expense, and make a genuine attempt to resolve the issue with the assistance of the mediator; and
(d)in the event that the parties are not able to reach agreement through the mediation process the wife have sole responsibility for making the final decision and in the event that the same involves the choice of a private school not a government school, the wife bear the full cost of private schooling.
In respect of significant medical issues (other than urgent or emergency issues) the parties:

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 FALCONE & FALCONE

Details

AGLC: FALCONE & FALCONE [2011] FMCAfam 138
Case: [2011] FMCAfam 138
Decision Date: 11 March 2011

CaseChat Overview and Summary

The matter of Falcone & Falcone was before the court, which dealt with both parenting and property issues arising from the separation of the parties. The primary concern in the parenting aspect was the arrangement for their son, born in 2006. The court had to decide on the allocation of parental responsibility and the specific time-sharing arrangements between the wife and the husband. In the property division, the court needed to address the husband's significant initial contribution to the marriage and the wife's future needs, as well as the division of their superannuation.

The court found that the husband's substantial initial contribution to the marriage warranted a 15 per cent loading in his favour, while the wife's future needs, assessed under section 75(2) factors, also attracted a 15 per cent loading in her favour. These considerations led the court to order an equal division of the parties' property. Additionally, concerning superannuation, the court directed an equal split with a base amount calculated on the basis that each party retain 60 per cent of their current superannuation entitlements. The court also outlined detailed parenting arrangements, giving the wife primary care of the child but providing the husband with significant and structured visitation rights, as well as stipulating processes for decision-making on education and medical issues.

The final orders mandated equal shared parental responsibility for the child except for education and non-urgent medical issues, where specific consultation and decision-making processes were outlined. The child was to live primarily with the wife, with the husband having detailed visitation rights, including alternate weekends, school holidays, and special occasions. The court also made precise orders for property division and superannuation splitting, ensuring a fair distribution reflective of the parties' respective contributions and needs. The court further declared that its orders would prevail over any inconsistent intervention orders, ensuring the child's safety and welfare.

Orders

Orders of the court

PARENTING – BY CONSENT SAVE FOR ORDERS 5(c), 5(d), 5(e) & 6 WHICH ARE ORDERS OF THE COURT

The wife and husband have equal shared parental responsibility for the child [X] born [in] 2006 ("[X]") save in respect of:

(a) education; and

(b) non urgent medical procedural issues.

In respect of matters touching on [X]'s education, including choice of primary and secondary schooling the parties :

(a) provide each other with a written proposal/position and in the case of choice of schooling such proposal be provided by 30 June in the year prior to the commencement of prep year and first year of secondary school;

(b) on exchanging proposals the parties make a genuine effort to consult on the issue to reach agreement;

(c) in the event that no agreement is reached the parties attend upon a mediator at their joint expense, and make a genuine attempt to resolve the issue with the assistance of the mediator; and

(d) in the event that the parties are not able to reach agreement through the mediation process the wife have sole responsibility for making the final decision and in the event that the same involves the choice of a private school not a government school, the wife bear the full cost of private schooling.

In respect of significant medical issues (other than urgent or emergency issues) the parties:

(a) consult separately (or together if the parties agree to do so) with [X] 's treating medical provider/specialist on the issue;

(b) provide to the other party notice of their view in regard to the issue in writing as soon as practicable after consultation with the medical provider or specialist;

(c) if appropriate and time permits engage the services of a mediator to help them resolve the issue; such mediator to be at their joint expense; and

(d) if following this process the parties cannot reach agreement the wife have sole responsibility for making the final decision on the issue.

[X] live with the wife.

The husband spend time and communicate with [X] as follows:

DURING 2011:

(a) each alternate weekend from 4.45 pm Friday to 4.45 pm Sunday commencing 18 February 2011;

(b) in the first term holidays the husband's usual weekend time continue;

(d) in the third term holidays the husband's weekend time continue and extend to 5.00 pm Tuesday;

(e) in the long summer holiday period 2011/2012 the usual weekend time continue and extend to 5.00 pm Wednesday;

FROM 2012 COMMENCING THE SECOND FRIDAY OF THE FIRST TERM 2012

(f) from after school Friday to before school Monday (or Tuesday, if the Monday is a non school day) each alternate week;

(g) from after school Tuesday or 3.00 pm if a non school day to before school Wednesday in the other week;

(h) for one half of the school term holidays and failing agreement the first half;

(i) for the long summer holidays 2012/2013 each alternate week from 5.00 pm Sunday to 5.00 pm the next Sunday;

(j) for the long summer vacation in 2013/2014 and onwards, for one half of the holidays and failing agreement the first half in 2013/2014 and each alternate year thereafter and the second half in the other alternate years;

(k) from 4.00 pm Christmas Eve to 4.00 pm Christmas Day 2011 and each alternate year thereafter and from 4.00 pm Christmas Day to 6.00 pm Boxing Day 2012 and each alternate year thereafter;

(l)

from after school (or 3.00 pm if a non school day) to 6.00 pm on 18 May 2011 and each alternate year thereafter and from after school (or 3.00 pm if a non school day) to 6.00 pm on

17 May 2012 and each alternate year thereafter;

(m) from 9.00 am to 5.00 pm on Father's Day and the husband's time be suspended from 9.00 am Mother's Day and from 3.00 pm to 6.00 pm on the husband's birthday and the husband's time be suspended between 3.00 pm and 6.00 pm on the wife's birthday;

(n) by telephone with the husband calling [X] each Tuesday and Thursday between 6.00 pm and 6.30 pm. The wife make [X] available to receive the telephone call on a landline or mobile telephone number; and

(o) for such further and other times as agreed between the parties in writing

All changeovers that do not occur at school or Gordon Care [F] take place at the [F] Police Station.

The wife provide to the husband details of:

(a) the names, address and contact details for [X]'s treating doctor, paediatrician (if any) and any other medical specialist and [X] 's dentist;

(b) [X]'s kindergarten and school;

(c) details of any other organisation or provider of extra curricular activity or events in which [X] is engaged in on an ongoing basis; and

(d) any significant medical appointments/consultations scheduled with [X]'s treating medical practitioners and do so as soon as practicable after such appointments/consultations are arranged by her.

The husband be at liberty to consult directly and separately with the medical practitioners as to any medical issue affecting [X] at his expense if any, if he is unable to attend such appointments conjointly with the wife.

It is declared that pursuant to section 68Q of the Family Law Act 1975 to the extent that these Orders are inconsistent with the Intervention Order made on 20 September 2010 by the Magistrates Court of Victoria these Orders prevail and the Intervention Order is invalid.

10.

The wife provide to the husband copies of any medical advices, assessments or reports prepared by medical specialists in respect of [X] as soon as practicable upon receiving same.

11.

The husband be at liberty to attend all school/kinder or special events to which parents are in the usual course invited subject only to any directions to the contrary from the kindergarten or school authorities regardless of whose care [X] is in at a particular time.

12.

The wife forthwith authorise and keep authorised [X]'s kindergarten and school to provide to the husband all information relevant to [X]'s education and welfare and authorisation for the purposes of these Orders is effected by the wife providing to the kindergarten and school a copy of these Orders and it is noted that such information includes newsletters, order forms for photographs, reports, notes etc.

13.

The wife and husband keep each other advised of a current residential address and a contact telephone number.

14.

The wife and husband advise each other immediately in the event that [X] suffers a significant illness or injury in their care or in the event he requires hospitalisation and in the event [X] is hospitalised the other parent is at liberty to attend at the hospital and is at liberty to consult with the hospital staff as to the matters touching on [X]'s health and welfare.

AND THE COURT NOTES

A. The parties are each aware that the husband is facing criminal charges and agree to these Orders with that knowledge.

B. The parties acknowledge that from 2012 all weekend and midweek time ceases during school holidays and resumes at the conclusion of the holidays as if the pattern had not been interrupted.

PROPERTY – ORDERS OF THE COURT

15.

Subject to order 17 herein the husband pay to the wife the sum of $202,871.00 (“the payment”) on or before the 11th day of May 2011 (“the date”).

16.

Contemporaneously with the payment:

(a) the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right, title and interest in the real property situate at and known as Property L (“Property L”); and

(b) the husband indemnify the wife against all payments and liability pursuant to the mortgage to RAMS (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.

17.

The husband shall notify the wife in writing no later than 4.00 pm on 11 April 2011 whether he is able or unable to purchase the wife’s interest in Property L pursuant to order 15 herein.

18.

If pursuant to order 17 herein, the husband notifies the wife that he is unable to purchase the wife’s interest in Property L pursuant to order 15 herein then the real property be forthwith sold altogether out of Court (“the first sale”) and upon completion of the first sale, the proceeds of the first sale be applied:

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

(b) secondly to discharge the mortgage and any other encumbrance affecting the real property;

(i) 50 per centum thereof to the husband; and

(ii) 50 per centum thereof to the wife

save that from the husband’s 50 per centum he shall pay to the wife the sum of $8,396.50.

19.

If pursuant to order 17 herein, the husband notifies the wife that he is able to purchase the wife’s interest in Property L pursuant to order 15 herein and the whole of the payment has not been made by the date then the husband sign all documents and do all things necessary to transfer to the wife the real property to be held on trust for sale (“the second sale”) and upon completion of the second sale, the proceeds of the second sale be applied:

(a) firstly to pay all costs, commissions and expenses of (the said trust transfer and) the sale;

(b) secondly to discharge the mortgage and any other encumbrance affecting the real property;

(c) thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 11 per centum per annum adjusted monthly from the date to the wife; and

(d) fourthly the balance to the husband.

20.

Pending the payment or completion of either of the first sale or the second sale:

(a) the husband have the sole right to occupy the real property and during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

(b) the parties hold their respective interests in the real property upon trust pursuant to these orders; and

21.

The [E] Superannuation Board (“[E]”) being the Trustee of the [E] Superannuation Scheme (“[S]”) (“the Fund”) is directed to split the husband’s interest in the Fund pursuant to section 90MT of the Family Law Act 1975 as herein set out.

22.

Pursuant to section 90MT(4) of the Family Law Act 1975, the amount of $76,443.60 be allocated as the base amount to the wife out of the interest of the husband in Fund.

23.

Pursuant to section 90MT(1)(a) of the Family Law Act 1975, when the Trustee of the Fund makes a splittable payment out of the husband’s interest in the Fund, the Trustee shall:

(a) pay to the wife the entitlement calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 calculated from the base amount of $76,443.60 (provided that such base amount shall not exceed the value of the interest determined under section 90MT(2) of the Family Law Act 1975); and

(b) make a corresponding reduction in the entitlement that the husband would otherwise have had in the Fund but for these orders.

24.

The operative time for the splitting of the Fund shall be given four days after the Trustee of the Fund has been served with a sealed copy of this order.

25.

The Trustee do all such acts and things and sign all necessary documents to fulfil any obligation set out in the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 so that the wife’s entitlement can be calculated and paid to her in accordance with these orders.

26.

Until the payment of the interest of the wife pursuant to these orders, the husband be and hereby is restrained from doing any act or thing or giving any direction which would have the effect of reducing or prejudicing the entitlements of the wife pursuant to this order.

27.

If as a result of termination of his employment, the husband becomes entitled to a benefit prior to the [E] making a payment under section 22F of the [E] Superannuation Act 1986, he shall provide to the [E] all such forms as shall be necessary to enable the [E] as Trustee to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably request within seven days of that entitlement arising.

28.

There be liberty to apply to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.

29.

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

(a)

each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in Property L being deemed to be in the possession of the husband save for the items listed in Annexure A hereto which the husband shall make available for collection by the wife or her nominated agent on or before 4.00 pm on

31 March 2011);

(b) insurance policies remain the sole property of the owner named thereon;

(c) each party 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; and

(d) 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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