Fosbery & Fosbery - [2008] FMCAfam 95

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FOSBERY & FOSBERY

[2008] FMCAfam 95

FAMILY LAW – Parenting – competing proposals for care arrangements – parental responsibility – mother’s psychiatric health – schooling.

FAMILY LAW – Property settlement – pool of assets – contributions – separate business interests and husband and wife – just and equitable.

FAMILIY LAW – Spouse maintenance.

Family Law Act 1975

Bento & Bento (2007) FamCA 498
NHC and RCH (2004) FLC 93-204
Crook & Cairns (2007) FMCAfam 371
Farnell (1996) FLC 92-681
Gaitan & Spark & Hagan (2005) FamCA 879
Gollings & Scott (2007) FLC 93-319
Goode& Goode (2006) FamCA 1346
Handley & Tranter (2007) FamCA 344
H & M (2006) FamCA 1071
Hickey (2003) FLC 93-143
Horton & Horton (2006) FamCA 1102
Kowaliw (1981) FLC 91-092
Lavender & Turner (2007) FamCA 182
AJO v GRO (2005) FLC 93-218
Re G: (Children’s Schooling) (2000) FamCA 462

Applicant:

MS FOSBERY

Respondent:

MR FOSBERY

File Number:

BRM 9841 of 2006

Judgment of:

Baumann FM

Hearing date:

1 November 2007

Date of Last Submission:

1 November 2007

Delivered at:

Brisbane

Delivered on:

8 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr Kirk SC

Solicitors for the Applicant:

Hirst & Co

Counsel for the Respondent:

Mr Galloway

Solicitors for the Respondent:

Parker Family Law

ORDERS

All previous parenting Orders be discharged.
That the child M born in 1998 live with the Father.
That the Mother and the Father will have equal shared parental responsibility.
The child, M shall live with the Mother at all times as agreed between the parties but no less than:
(a)Each alternate weekend commencing 28 February 2008 from after school Thursday to before school Monday provided that should the Monday be a public holiday or pupil free day, the time will extend to before school Tuesday;
(b)From after school Thursday to before school Friday in each alternate week commencing 21 February 2008;
(c)The arrangements in Order 2 and 4.1 and 4.2 of this Order are varied by the following arrangements:
School Holidays
(i)The child shall live with each parent for half of each school holiday period which is determined by the school M attends, M shall live with the Mother in the first half in even numbered years and the second half in odd numbered years.
Christmas Day
(ii)The child shall live with the Father from 3.00pm Christmas Day to 3.00pm Boxing Day in even numbered years (when the child is with Mother for the first half of the holidays).
(iii)The child shall live with the Mother from 3.00pm Christmas Day to 3.00pm Boxing Day in odd numbered years (when the child is with the Father for the first half of the holidays).
Mother’s Day
(iv)M shall spend time with the Mother between 9.00am to 5.00pm on Mother’s day if not otherwise living with her on that day.
(v)M shall spend time with the Father between 9.00am to 5.00pm on Father’s Day if not otherwise living with him on that day.
M's Birthday
(vi)M will spend 3 hours…

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 Fosbery & Fosbery

Details

AGLC: Fosbery & Fosbery [2008] FMCAfam 95
Case: [2008] FMCAfam 95
Decision Date: 8 February 2008

CaseChat Overview and Summary

In the case of Fosbery & Fosbery, the court was tasked with resolving complex issues related to parenting arrangements, property settlement, and spousal maintenance. The parents, referred to as the Father and Mother, were in dispute over the care of their child, M, and the distribution of their assets following their separation. The court was required to consider various factors including the mother's psychiatric health, the child's schooling, and the contributions of each party to the marital assets.

The legal issues before the court included determining the most appropriate parenting arrangements for the child, ensuring equal shared parental responsibility, and establishing a fair property settlement. The court also had to address the issue of spousal maintenance. The Mother argued for a more substantial property settlement and spousal maintenance, while the Father sought to limit his financial obligations.

The court carefully considered the evidence and submissions from both parties. It found that the Father should have primary care of the child, with specific arrangements for weekends, school holidays, and special occasions. The court also determined that the Mother's psychiatric health and the child's schooling were significant factors in the decision-making process. Regarding the property settlement, the court found that the pool of assets should be divided equitably, taking into account the contributions of each party, including the Mother's involvement in the Father's business. The court also considered the separate business interests of the parties. The court decided that spousal maintenance was not appropriate in this case.

The court made detailed orders regarding the parenting arrangements and the property settlement. The child was to live primarily with the Father, with specific arrangements for time spent with the Mother during weekends, school holidays, and special occasions. The court also ordered that the net proceeds from the sale of the former matrimonial home be divided between the parties, along with specific directions regarding the transfer of various assets and liabilities. The court did not order spousal maintenance for the Mother.

This comprehensive decision addresses the complex issues of parenting, property, and spousal maintenance, providing a detailed framework for the future care and financial arrangements of the parties and their child.

Orders

Orders of the court

All previous parenting Orders be discharged.

That the child M born in 1998 live with the Father.

That the Mother and the Father will have equal shared parental responsibility.

The child, M shall live with the Mother at all times as agreed between the parties but no less than:

(a) Each alternate weekend commencing 28 February 2008 from after school Thursday to before school Monday provided that should the Monday be a public holiday or pupil free day, the time will extend to before school Tuesday;

(b) From after school Thursday to before school Friday in each alternate week commencing 21 February 2008;

School Holidays

(i) The child shall live with each parent for half of each school holiday period which is determined by the school M attends, M shall live with the Mother in the first half in even numbered years and the second half in odd numbered years.

Christmas Day

(ii) The child shall live with the Father from 3.00pm Christmas Day to 3.00pm Boxing Day in even numbered years (when the child is with Mother for the first half of the holidays).

(iii) The child shall live with the Mother from 3.00pm Christmas Day to 3.00pm Boxing Day in odd numbered years (when the child is with the Father for the first half of the holidays).

Mother’s Day

(iv) M shall spend time with the Mother between 9.00am to 5.00pm on Mother’s day if not otherwise living with her on that day.

(v) M shall spend time with the Father between 9.00am to 5.00pm on Father’s Day if not otherwise living with him on that day.

M's Birthday

(vi) M will spend 3 hours on his birthday at a time agreed between the parents) with the parent he is not living with on that day under this Order.

Easter Public Holidays 2008

(vii) For Easter 2008 M will spend time with the Mother from 3.00pm Easter Sunday to commencement of school Tuesday.

(d) For all periods other than those when M is at school, the Father will deliver or cause M to be delivered to the Mother’s residence at the commencement of the Mother’s time with M and the Mother will deliver or cause M to be delivered to the Father’s residence at the conclusion of M’s time with the Mother.

(e) For the purpose of these Orders, school holiday time shall commence:

(i) When the Mother’s time falls in the first half of the school holidays from after school on the day school term finishes and concludes at 5.00pm on the day calculated to be half of the school holidays;

(ii) When the Mother’s time falls in the second half of school holidays from 9.00am on the day calculated to represent half of the school holidays and conclude at commencement of school on the day the school term commences;

(iii) School holidays shall be deemed to commence at close of school on the day the school term finishes in accordance with the school calendar published by M’s school at the time and conclude at commencement of school on the day M returns to school for commencement of the new term and the number of nights in each school holiday period and if there is an uneven number of nights the Father will retain the additional night.

Should M wish to telephone either parent when M is with the other parent, then the parent with whom M is at the time will do all things necessary to facilitate that telephone call.

The mother and the father will use their best endeavours to ensure that M attends any educational, religious, sporting or cultural event or activity that he is to participate in when M is in their care.

Neither the Mother nor the Father will denigrate the other to or in the presence of M or L and/or N.

The Mother and Father will keep each other informed at all times of their residential address, email address, mobile telephone number and landline contact telephone number.

M shall be enrolled at [S] School for year 5 commencing in 2008 and remain so enrolled unless otherwise agreed between the parties or ordered by a Court.

10.

That the Father and Mother do all things necessary to ensure that M’s enrolment to attend [B] School remains current and that any fees associated with the enrolment be paid for by the Mother.

11.

The Mother and Father will consult with each other about decisions to be made in exercise of their equal shared parental responsibility for M and in so giving will:

(a) Inform the other about the decision to be made;

(b) Consult with each other on terms they agree;

12.

The process to be used for resolving disputes with respect to decisions for any major long term issue with respect to M and resolving any disputes with respect to the terms or operations of these Orders will be:

(a) The Mother and Father will consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute and reaching an agreement;

(b) The Mother and Father will pay equally the costs of the Family Dispute Resolution Practitioner;

(c) Should the Mother and Father be unable to agree on a Family Dispute Resolution Practitioner the Father will nominate three (3) practitioners and advise in writing, details of their fees, experience and availability;

(d) The Mother will choose one (1) of the listed practitioners within seven (7) days of the receipt of the father’s written list;

(e) Should the Mother fail to choose a Dispute Resolution Practitioner within seven (7) days then the Father will choose.

13.

That within seven (7) days of the date of this Order the net proceeds of sale of the former matrimonial home will be paid to the Wife in the amount of $704,169.45 and to the Husband in the amount of $336,758.09 with any interest accrued after 7 February 2008 to b divided 55% to the Wife and 45% to the Husband.

14.

That the Husband will transfer to the Wife and the Wife will retain for her sole use and benefit absolutely, the following:

(a) The Wife’s superannuation interests;

(b) Furniture and household items in the Wife’s possession;

(d) Sigma Pharmaceutical shares;

(e) Qantas Frequent Flyer points.

15.

That the Wife transfer to the Husband and the Husband retain for his sole use and benefit absolutely the following:

(a) The Husband’s Superannuation interests;

(b) Furniture and household items in the Husband’s possession;

(d) [T] Swimming Club membership;

(e) The Husband’s loan accounts, business interests and associated entitites;

(f) American Express award points;

(g) The Wife’s shareholding in Amlor Pty Ltd.

16.

That within fourteen (14) days of the date of these Orders, the Wife will deliver possession of the Ford Territory motor vehicle currently in her possession to the Husband provided that however should the Wife pay out of the lease to BOQ Equipment Finance Ltd with respect to the said vehicle within the fourteen (14) day period the Husband will cause the Ford Territory motor vehicle to be transferred to the Wife.

17.

That within seven (7) days of the date of these Orders, the Wife will deliver possession of L, N and M’s jewellery to the Husband.

18.

That within seven (7) days of the date of these Orders, the Husband will deliver possession of the leaves to the dining table retained by the Wife to the Wife.

19.

That within seven (7) days of the date of these Orders, the Wife will deliver possession of the [T] entry card to the Husband.

20.

That should the Wife pursue a successful claim against MLC insurance with respect to her income protection policy, the Wife will pay to the Husband 45% of any net payments that are recovered as part of that claim whether by compromise of the claim or judgment.

21.

That the Wife will forthwith upon the compromise of any claim against MLC insurance or upon judgment being given with respect to that claim advise the Husband in writing of the details of the compromise and/or judgment.

22.

That except as otherwise provided in these Orders, the Husband and the Wife are entitled to be sole legal and beneficial owners of all items of property including (but not limited to) money, motor vehicles, insurances, equities, Superannuation entitlements and personal effects currently in the possession or control of each of them respectively.

23.

That the Husband and the Wife will do all such acts and sign all such documents necessary to give effect to the operation of these Orders.

24.

That should either party default in signing or executing such documents required to give effect to any and every provision of these Orders, then the Registry Manager of the Family Law Courts at Brisbane shall be empowered and is hereby empowered to sign and execute documents in lieu of the defaulting parties pursuant to s.106A of the Family Law Act 1975.

25.

That the parties agree that it shall be sufficient evidence of default in signing the necessary document or instrument as referred to above, when the party requiring it to be executed forwards the same to the other party or Solicitors who act for the other party in the making of these Orders and within fourteen (14) days thereof if same is not properly executed and returned to the party requiring the execution by the other party.

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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