FERREDAY & LAYH - [2018] FamCA 646

FAMILY COURT OF AUSTRALIA

FERREDAY & LAYH

[2018] FamCA 646

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child – Parenting considerations – Meaningful relationship – Allegations of sexual abuse unable to be substantiated by evidence – Where each party seeks sole parental responsibility for the child – orders least likely to lead to further litigation.

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Whether it is just and equitable to make an order altering the interests of parties to property – factors to consider under section 75(2) of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3)

Bevan & Bevan [2013] FamCAFC 116
Clauson & Clauson (1995) FLC 92-595
Hickey and Hickey & A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
M and M (1988) 166 CLR 69
Mezzacappa & Mezzacappa (1987) FLC 91-853
R v R (Children’s Wishes) (2002) FLC 93-108
Stanford & Stanford (2012) FLC 93-518
Vasser & Taylor-Black (2007) FLC 93-329
Weir & Weir (1993) FLC 92-338

APPLICANT:

Mr Ferreday

RESPONDENT:

Ms Layh

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

122

2015

DATE DELIVERED:

24 August 2018

PLACE DELIVERED:

Darwin

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

25, 26, 27, 28 and 29 June 2018 and 3, 19 and 20 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Childs

SOLICITOR FOR THE RESPONDENT:

E Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

Parenting

That all previous parenting orders be discharged.
That the wife have sole parental responsibility for X born … 2008 (“the child”).
That the child live with the wife and spend time with the husband each week from 10 am Sunday until the commencement of school Wednesday (or 10 am if a non-school day).
That each year the child spends time with the wife on Mother’s Day from 9 am until 5 pm and with the husband on Father’s Day from 9 am until 5 pm.
That each year, if the child is not already in the wife’s care on Country B New Year’s Eve, the child is to spend time with the wife for a period of 48 hours commencing from 12 noon on Country B New Year’s Eve.
That each year, if the child is not already in the husband’s care on Christmas Eve, the child is to spend time with the husband for a period of 48 hours commencing from 12 noon on Christmas Eve.
Any handover not occurring at the child’s school is to occur at the Coles supermarket at C Town or such other place as the parties may agree.
Each party is restrained and an injunction granted restraining each of them:
(a)From participating in school activities or attending at the child’s school…

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 FERREDAY & LAYH

Details

AGLC: FERREDAY & LAYH [2018] FamCA 646
Case: [2018] FamCA 646
Decision Date: 24 August 2018

CaseChat Overview and Summary

In the matter of FERREDAY & LAYH, Berman J of the Family Court of Australia determined parenting and property settlement issues between the parties. The dispute involved allegations of sexual abuse which were unable to be substantiated by evidence. Each party sought sole parental responsibility for the child, and the court aimed to make orders least likely to lead to further litigation. The property settlement also required consideration of the just and equitable distribution of assets under section 75(2) of the *Family Law Act 1975* (Cth).

The court was required to determine the most appropriate parenting arrangements for the child, considering the child's best interests and the need for a meaningful relationship with both parents, despite the unsubstantiated allegations. In relation to property, the court had to assess the financial contributions and needs of each party to determine a just and equitable settlement.

Berman J ordered that the wife have sole parental responsibility for the child, with the child to live with the wife and spend time with the husband on specified days each week and on public holidays. The court also made detailed orders regarding communication between parents and the child, including provisions for overseas travel and the management of the child's passport. In terms of property, the husband was ordered to pay a settlement sum to the wife and transfer his interest in a specified property. The court also detailed the division of other assets and liabilities, including the retention of certain businesses and properties by each party, and provided for the sale of properties in the event of default in payment of the settlement sum.

Orders

Orders of the court

Parenting

That all previous parenting orders be discharged.

That the wife have sole parental responsibility for X born … 2008 (“the child”).

That the child live with the wife and spend time with the husband each week from 10 am Sunday until the commencement of school Wednesday (or 10 am if a non-school day).

That each year the child spends time with the wife on Mother’s Day from 9 am until 5 pm and with the husband on Father’s Day from 9 am until 5 pm.

That each year, if the child is not already in the wife’s care on Country B New Year’s Eve, the child is to spend time with the wife for a period of 48 hours commencing from 12 noon on Country B New Year’s Eve.

That each year, if the child is not already in the husband’s care on Christmas Eve, the child is to spend time with the husband for a period of 48 hours commencing from 12 noon on Christmas Eve.

Any handover not occurring at the child’s school is to occur at the Coles supermarket at C Town or such other place as the parties may agree.

Each party is restrained and an injunction granted restraining each of them:

(a) From participating in school activities or attending at the child’s school on those days that the child is in the other parent’s care save as to school concerts, parent/teacher interviews, graduation ceremonies or sports days;

(b) From discussing these proceedings or the contents of any documents filed in the proceedings with or in the presence or hearing of the child or permitting any other person to do so.

That the husband is restrained and an injunction is granted restraining him:-

(a) From arranging or facilitating the attendance of the child upon Dr D or any mental health care provider, psychologist, psychiatrist, social worker, counsellor, therapist or other similar health practitioner without the prior written consent of the wife;

(b) From arranging or facilitating the attendance of the child upon any general medical practitioner or general medical practice without the prior written consent of the wife.

10.

That each party do inform the other forthwith of any medical emergency or medical event involving the child with full details provided as to the treating medical practitioner and treatment provided to the child.

11.

The parties do:-

(a) facilitate the child communicating with the other parent by telephone at any time that the child reasonably requests to do so;

(b) keep the other party informed by email or text message as to all serious medical issues concerning the said child and any serious illnesses as may be suffered by the child;

(c) forthwith advise the other party by text message in the event of any illness or accident suffered by the said child that requires hospitalisation or other medical treatment and permit the other parent to attend at any hospital or other facility to which the child has been admitted or treated;

(d) be at liberty to obtain from any school at which the said child attends from time to time copies of all school newsletters, school reports, photographs and any other information, which parents are ordinarily entitled to obtain at each parents’ sole expense in all things.

12.

That the child be permitted to travel overseas with each of the parents as follows:-

(a) In 2019 and each alternate year thereafter the child be permitted to travel overseas with her mother for one (1) period of four (4) weeks;

(b) In 2020 and each alternate year thereafter the child be permitted to travel overseas with her father for one (1) period of four (4) weeks.

13.

It is a condition of each parties travel overseas with the child that:-

(a) The travelling party provide the other with no less than sixty (60) days prior notice of the intended departure date;

(b) That no less than thirty (30) days prior to his or her departure date the travelling party provide the other with a full itinerary;

(c) The non-travelling parent is restrained from accompanying the travelling parent and the child or from seeking to spend time with the child during the travel period without first obtaining the written consent of the travelling parent not less than thirty (30) days prior;

(d) That during any such travel the parties facilitate the child communicating with the other party by email, text message or telephone on at least one (1) occasion per week.

14.

That the parties do all things necessary and execute all such documents as may be required to renew the child’s passport from time to time.

15.

That until the child shall reach the age of fourteen (14) years whereupon the child’s passport will remain in the possession of the mother, the passport shall be deposited at the Adelaide Registry of the Family Court of Australia to be released to the travelling party at least seven (7) days prior to the proposed departure date and on the travelling party depositing at the Adelaide Registry of the Family Court of Australia a surety in the sum of FIVE THOUSAND DOLLARS ($5,000).

16.

That the surety described shall be returned to the travelling party on return of the child’s passport to the Adelaide Registry of the Family Court of Australia and in any event, by no later than seven (7) days after the child’s return to the Commonwealth of Australia.

17.

That the appointment of the Independent Children’s Lawyer be discharged.

Property

18.

That in full and final settlement of all claims that either party may have against the other for property settlement pursuant to the provisions of the Family Law Act 1975 (Cth) (as amended) (“the Act”):-

(a) That on or before forty five (45) days from the date of this order the husband do pay to the E Centre on behalf of the wife the sum of TWO HUNDRED AND SEVENTY THREE THOUSAND TWO HUNDRED AND THIRTEEN DOLLARS ($273,213) (“the settlement sum”).

(b) That contemporaneously with the payment of the settlement sum the wife transfer her estate, interest and title situate at F Street, C Town described in Certificate of Title Volume … Folio … (“the F Street property”).

19.

That within thirty (30) days of the date of this order the husband transfer to the wife at her expense the motor vehicle registration number.

20.

Subject to the payment of the said settlement sum the husband shall retain free from any claim by the wife the following:-

(a) All money standing to his credit in any bank account, credit union or financial institution;

(b) Any personalty or realty in his possession and control;

(d) His interest in G Pty Ltd (ACN …), H Pty Ltd (ACN …) and J Pty Ltd.

(e) The husband’s interest in 1 and 2 K Street, L Town

21.

That the wife retain free from any claim by the husband the following:-

(a) All money standing to her credit in any bank account, credit union or financial institution;

(b) Any personalty or realty in her possession and control;

22.

That pending payment of the settlement sum the husband is restrained and an injunction is granted restraining him in his personal capacity and his capacity as director, shareholder, trustee or appointor or such other capacity in which he may exercise control over assets the subject of these proceedings, in particular H Pty Ltd ACN …; G Pty Ltd ACN …; J Pty Ltd ACN …; H Trust; and G Trust, or from disposing, selling, transfer, encumbering or otherwise dealing with any of the following properties:-

(a) Real property at K Street, L Town, SA (Lot 1 - C/T …);

(b) Real property at K Street, L Town, SA (Lot 2 – C/T …);

(d) Real property at M Street, C Town (C/T …).

23.

That should the husband default on the payment of the settlement sum or any part thereof and should the period of default be longer than fourteen (14) days the husband and wife will do all things and sign all such necessary documents to effect the sale of the property situate at F Street, C Town by public auction or private treaty as follows:-

(a) With such real estate agent as is agreed between the parties and failing agreement as may be nominated by the wife;

(b) That the list price of the F Street property shall be such amount as agreed between the parties and failing agreement as may be nominated by the real estate agent appointed to effect the sale;

(c) That the parties are to cooperate in every way with the real estate agent in relation to the marketing of the F Street property for sale including making the key readily available, allowing inspection of the F Street property at all times reasonably requested by the agent and ensuring that the F Street property is clean, neat and in good order at the time of inspection by any prospective buyer.

(d) That the proceeds of sale of the F Street property shall be paid in the following manner and priority:-

(i) To discharge mortgage number … to the ANZ Bank;

(ii) Any outstanding rates, taxes, levies owing to the property;

(iii) Payment of the agent’s commission and other costs of sale;

(iv) Payment of any legal costs relating to the sale;

(v) The balance to the wife PROVIDED that if the sum is greater than the amount of the settlement sum due and owing to the wife including default for penalty interest pursuant to the Family Law Regulations 2004 (Cth) THEN those excess funds shall be paid to the husband.

24.

In the event that following the sale of the F Street property the proceeds of sale (if any) payable to the wife is insufficient to discharge the settlement sum together with accrued default interest or such lesser amount as may be outstanding THEN the parties will do all such acts and things and sign all such documents as may be necessary to effect the sale of the properties at Lot 1 and 2, K Street and M Street, C Town with the net proceeds of sale after the payment out of the costs of sale and any mortgage liability remaining shall be distributed to the wife for such amount as remains outstanding pursuant to these orders and the balance to the husband.

25.

The husband will indemnify the wife and keep her indemnified in respect of any liability arising from the continued operation of H Pty Ltd, G Pty Ltd, J, H Trust and G Trust.

26.

Liberty to apply as to consequential orders.

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.