FEARNE & FEARNE (No.2) - [2012] FMCAfam 917

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FEARNE & FEARNE (No.2)

[2012] FMCAfam 917

FAMILY LAW – Marital property proceedings – wife seeks that proceedings be heard on an undefended basis – marriage of ten years in duration – matters to be considered – small asset pool – assessment of contributions – parties’ respective contributions assessed as equal – section 75(2) factors – wife has care of parties’ two children aged 8 & 6 – children have special needs – wife is modest income earner – husband unlikely to pay child support – overall assessment of section 75(2) factors overwhelmingly favours wife – considerations of justice and equity indicate wife should retain former family home.

Family Law Act 1975 (Cth), ss.79; 79(4)(c); 75(2)

Taylor v Taylor (1979) 143 CLR 1
Fearne & Fearne [2011] FMCAfam 1432
Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335;
Clauson v Clauson (1995) FLC 92-595
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635
GH & CTH [2005] FamCA 734

Applicant:

MR FEARNE

Respondent:

MS FEARNE

File Number:

ADC 3796 of 2011

Judgment of:

Brown FM

Hearing date:

6 June 2012

Date of Last Submission:

6 June 2012

Delivered at:

Adelaide

Delivered on:

6 June 2012

REPRESENTATION

Counsel for the Applicant:

No appearance

Counsel for the Respondent:

In person

ORDERS

The mother do have the sole parental responsibility for the children of the marriage X born (omitted) 2003 and Y born (omitted) 2006.
The said children do live with the wife.
The said children do spend time with the husband at such times and upon such conditions as may be agreed between the parties.
The wife do authorise the children’s school to provide to the husband copies of all school newsletters, school reports, photographs and the like of the children and the father be at liberty to attend at all school functions to which parents are usually invited to attend.
Each party do forthwith inform the other in the event of any serious accident or illness of the children and in the event of hospitalisation each parent do be entitled to attend at such hospital.
Each party be restrained and an injunction be granted restraining each of them from:-
(a)ridiculing or denigrating the other to the said children or in the presence of the said children or permitting any other person to do so;
(b)discussing the proceedings with the said children or permitting any other person to do so.
The appointment of the independent children’s lawyer is dismissed.

In full and final settlement of all claims for the settlement of matrimonial property:

The husband do all necessary things to transfer to the wife his interest in the Hyundai (model omitted) car registration number (omitted) currently in the wife’s possession.
The husband do all things necessary to transfer to the wife his…

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 FEARNE & FEARNE (No.2)

Details

AGLC: FEARNE & FEARNE (No.2) [2012] FMCAfam 917
Case: [2012] FMCAfam 917
Decision Date: 6 June 2012

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Fearne & Fearne (No.2) was adjudicated, involving the parents, Fearne and Fearne. The dispute primarily revolved around the custody and care of their two children, born in 2003 and 2006, as well as the division of their matrimonial property. The court had to determine the primary care arrangements for the children, the conditions under which the father could have contact, and the allocation of assets and liabilities following the separation. Additionally, the court was tasked with deciding whether the appointment of an independent children’s lawyer should continue.

The court concluded that the mother should have sole parental responsibility for the children, who would reside with her. The father was granted visitation rights, subject to agreement between the parties. The court mandated that the mother facilitate the father’s access to school communications and events. Both parents were required to inform each other of any significant health incidents involving the children and were granted visitation rights during hospital stays. The court issued injunctions against both parties ridiculing or discussing the proceedings with the children. The appointment of an independent children’s lawyer was dismissed, given the resolution of the issues at hand. Regarding the property settlement, the husband was ordered to transfer his interest in a car and the former matrimonial home to the wife, with provisions for discharging the mortgage. The wife was required to indemnify the husband for certain outgoings related to the former home. Each party was to retain their respective assets, free from further claims by the other.

The court's ruling provided detailed orders for the custody of the children, conditions for parental contact, and specific directives for the division and management of the matrimonial assets. This comprehensive approach aimed to ensure the well-being of the children and a fair distribution of property between the parties. The final orders reflect the court's decisions on each aspect of the dispute, providing clarity and direction for the future care of the children and the financial responsibilities of the parents.

Orders

Orders of the court

The mother do have the sole parental responsibility for the children of the marriage X born (omitted) 2003 and Y born (omitted) 2006.

The said children do live with the wife.

The said children do spend time with the husband at such times and upon such conditions as may be agreed between the parties.

The wife do authorise the children’s school to provide to the husband copies of all school newsletters, school reports, photographs and the like of the children and the father be at liberty to attend at all school functions to which parents are usually invited to attend.

Each party do forthwith inform the other in the event of any serious accident or illness of the children and in the event of hospitalisation each parent do be entitled to attend at such hospital.

Each party be restrained and an injunction be granted restraining each of them from:-

(a) ridiculing or denigrating the other to the said children or in the presence of the said children or permitting any other person to do so;

(b) discussing the proceedings with the said children or permitting any other person to do so.

The appointment of the independent children’s lawyer is dismissed.

In full and final settlement of all claims for the settlement of matrimonial property:

The husband do all necessary things to transfer to the wife his interest in the Hyundai (model omitted) car registration number (omitted) currently in the wife’s possession.

The husband do all things necessary to transfer to the wife his entire right and interest in the former matrimonial home located at Property K in the State of South Australia and being the whole of the land described in Certificate of Title Volume (omitted) Folio (omitted).

10.

The parties take all necessary steps and execute all necessary documents to discharge the mortgage in favour of mortgage number (omitted) to the Bank of Western Australia Ltd.

11.

In the event the husband fails to comply with order 8, 9 and 10 hereof within thirty (30) days of the date hereof pursuant to section 106A of the Family Law Act 1975 the Registrar of the Family Court at Adelaide is appointed to execute any necessary deeds or instrument required to be completed to give effect to these orders in event either party refuses or neglects to comply with order (11) hereof.

12.

The wife keep the husband forever indemnified in respect of all outgoings in respect of the former matrimonial home including payment of all monies due in respect of:

(a) All mortgage payments, rates, taxes, levies and other outgoings; and

(b) All debts and liabilities of the wife including personal loan, credit card and store account debts in the sole name of the wife or severally with others.

13.

That as and from the date of this order, each party shall retain all assets which each now has when so ever or how so ever required; including but without limiting the effect hereto the respondent shall retain for her sole use and benefit absolutely free from any further claim or demand of the applicant:

(a) furniture and effects in her possession, power and control.

(b) any motor vehicle in her possession.

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits.

(e) her personal effects.

(f) any other real and/or personal property and/or financial resources of the respondent in the respondent’s name and/or possession not otherwise specified herein.

14.

Including but without limiting the effect hereof, the applicant shall retain for his sole use and benefit absolutely free from any further claim or demand of the respondent:

(a) the furniture and furnishings in his possession, power and control.

(b) any motor vehicle in his possession.

(d) any superannuation entitlement, long service leave, annual leave or other work related benefits.

(e) personal effects.

(f) any other real and/or personal property and/or financial resources of the applicant or in the applicant’s name and/or possession not otherwise specified herein.

15.

All extant applications be otherwise dismissed.

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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