FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRANKLYN & FRANKLYN | [2021] FCCA 588 |
| Catchwords: PROPERTY – Final property adjustment – section 75(2) adjustments – consideration of financial and non-financial contributions – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 60B, 60CA, 60CC, 61DA, 65DAA. Family Law Rules 2004 (Cth), pt.19.04. |
| Cases cited: Babcock & Waddell [2019] FamCAFC 129 Bevan v Bevan (2013) FLC 93-545 Black & Kellner [1992] FLC 92-287 Blinko v Blinko [2015] FamCAFC 146 Goode and Goode (2006) 206 FLR 212 M & M (1988) 166 CLR 69 Mazorski v Albright (2007) 37 Fam LR 518 MRR & GR [2010] HCA 4 Petruski & Balewa (2013) 49 Fam LR 116 Sebastian & Sebastian (No. 5) [2013] FamCA 191 U & U [2002] FLC 93-112 Weir & Weir [1993] FLC 92-338 |
| Applicant: | MR FRANKLYN |
| Respondent: | MS FRANKLYN |
| File Number: | DUC 63 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 1, 2 & 3 February 2021 |
| Date of Last Submission: | 3 February 2021 |
| Delivered at: | Parramatta |
| Delivered on: | 26 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Matthews Folbigg |
| Counsel for the Respondent: | Mr Hogg |
| Solicitors for the Respondent: | KLM Solicitors |
| Counsel for the Independent Children's Lawyer: | Ms Hayward |
ORDERS
Parenting:
That the parties shall have equal shared parental responsibility for the child Y born in 2015 (“Y”).
That the Mother shall have sole parental responsibility for the child X born in 2008 (“X”).
Within six months of the date of these Orders the Mother shall cause the residence of Y and X to be not less than 160kms from the Father’s residence in Suburb K NSW and the Mother shall provide the following information to the Father:
(a)Immediately upon identifying where she will be residing with the children the Mother shall provide the details of the town centre closest to where she will be living.
(b)Immediately upon identifying where she will be residing with the children, the Mother shall notify the Father of which school she proposes each child attend for the purposes of the Father being involved in the decision making and enrolment of the children in school.
If the Mother complies with Order 3 Y and X shall live with the Mother.
If the Mother complies with Order 3 Y shall spend time with the Father as follows, commencing on the first weekend following the Mother’s compliance:
(a)During the school term each alternate weekend from the conclusion of school Friday until the commencement of school Monday with such time to extend to before school on Tuesday if the Monday is a public holiday.
(b)During the school term each alternate week from the conclusion of school Wednesday until 8pm Wednesday being the Wednesday after…
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- FRANKLYN & FRANKLYN [2021] FCCA 588
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- [2021] FCCA 588
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CaseChat Overview and Summary
The court was required to determine the most appropriate parenting orders for the two children, including the allocation of parental responsibility and the time each parent would spend with the children, particularly in light of the differing biological relationships. Furthermore, the court had to make orders for the final adjustment of the parties' property interests, considering their financial and non-financial contributions to the marriage and the future needs of each party.
In relation to parenting, the court made orders for equal shared parental responsibility for the younger child, Y, and sole parental responsibility for the older child, X, to the mother. A significant condition was imposed on the mother to relocate the children's residence to be at least 160kms from the father's residence within six months, with detailed provisions for school notification and parental involvement in decision-making. The orders outlined specific time arrangements for the children with each parent, contingent on the mother's compliance with the relocation requirement, and included provisions for counselling for X and communication protocols between the parents. For the property adjustment, the court ordered the husband to make a cash payment to the wife and transfer his interest in a specific property and partnership to the husband. The orders also detailed the sole ownership and liability for various other properties, assets, and debts of each party, with provisions for the sale of the property if the cash payment was not made.
Orders
Orders of the court
Parenting:
1.
That the parties shall have equal shared parental responsibility for the child Y born in 2015 (“Y”).
2.
That the Mother shall have sole parental responsibility for the child X born in 2008 (“X”).
3.
Within six months of the date of these Orders the Mother shall cause the residence of Y and X to be not less than 160kms from the Father’s residence in Suburb K NSW and the Mother shall provide the following information to the Father:
(a) Immediately upon identifying where she will be residing with the children the Mother shall provide the details of the town centre closest to where she will be living.
(b) Immediately upon identifying where she will be residing with the children, the Mother shall notify the Father of which school she proposes each child attend for the purposes of the Father being involved in the decision making and enrolment of the children in school.
4.
If the Mother complies with Order 3 Y and X shall live with the Mother.
5.
If the Mother complies with Order 3 Y shall spend time with the Father as follows, commencing on the first weekend following the Mother’s compliance:
(a) During the school term each alternate weekend from the conclusion of school Friday until the commencement of school Monday with such time to extend to before school on Tuesday if the Monday is a public holiday.
(b) During the school term each alternate week from the conclusion of school Wednesday until 8pm Wednesday being the Wednesday after Y has spent time with the Father on the previous weekend.
(c) For the first half of each NSW school holiday period in odd numbered years.
(d) For the second half of each NSW school holiday period in even numbered years.
(e) On the Father’s Day weekend from conclusion of school Friday until the commencement of school on Monday.
(f) From 3pm until 6.30pm on Y’s birthday if his birthday is a day when the Father would not otherwise spend time with Y in accordance with these Orders.
(g) Such other times as agreed between the parties.
6.
The Father’s time with Y shall be suspended as follows:
(a) For the first half of each NSW school holiday period in even numbered years.
(b) For the second half of each NSW school holiday period in odd numbered years.
(c) On the Mother’s Day weekend from conclusion of school Friday until the commencement of school on Monday.
(d) From 3pm until 6.30pm on Y’s birthday if his birthday is a day when the Mother would not otherwise spend time with Y in accordance with these Orders.
(e) Such other times as agreed between the parties.
7.
Pending compliance with Order 3 (and expiring at the conclusion of six months from the date of these Orders) Y shall live with the Mother and spend time and communicate with the Father as follows:
(a) Commencing on the first weekend following these Orders and continuing each alternate weekend thereafter from 9am Saturday until 4pm Sunday in the Greater Sydney region of New South Wales with changeover to occur at Suburb SS McDonald’s.
(b) Each Tuesday, Thursday and Sunday by video call between 6.30pm and 7pm.
8.
Pending compliance with Order 3 (and expiring at the conclusion of six months from the date of these Orders) X shall live with the Mother and spend time and communicate with the Father as follows:
(a) By video call on each Tuesday, Thursday and Sunday that Y has a video call with the Father in accordance with these Orders, with X to participate in the video call together with Y or immediately after the video call with Y and for this purpose the Mother shall provide X with a private location to conduct that video call and shall not be entitled to listen or participate.
(b) On the first two occasions of Y’s time with the Father in Order 7 the Mother shall cause X to attend at changeover with her when Y spends time with the Father in accordance with Order 7 for the purposes of X spending not less than 20 minutes with the Father and Y at the commencement and conclusion of Y’s time with the Father and the Mother shall not be present during these periods.
(c) At the expiry of Order 8(a), X shall be included in the time that Y and the Father spend together in Order 7 for not less than 3 hours (with that period to be at the commencement of the time) and the Mother shall arrange the attendance of TT Contact Centre and pay the costs associated with that attendance with the Mother to collect X from a changeover location nominated by the Father at the conclusion.
9.
If the Mother complies with Order 3, X shall spend time with the Father as follows:
(a) For a period of two months for not less than 4 hours each alternate weekend with such time to be whilst Y is in the care of the Father.
(b) At the expiry of Order 9(a) at such times as Y is spending with the Father.
(c) The Father shall be at liberty to determine (with the assistance of X’s counsellor referred to in Order 12 below) to determine whether X requires the assistance of a professional supervision service during any part of this time and shall make those arrangements if that is recommended.
10.
If the Mother fails to comply with Order 3, Y shall live with the Father and spend time with the Mother as follows:
(a) On the second weekend of each calendar month from conclusion of school on Friday until commencement of school on Monday with the Mother to collect Y from school at the commencement and return him to school at the conclusion.
(b) On the Mother’s Day weekend from conclusion of school Friday until the commencement of school on Monday with the Mother to collect Y from school at the commencement and return him to school at the conclusion.
(c) For the first half of each NSW school holiday period in even numbered years.
(d) For the second half of each NSW school holiday period in odd numbered years.
(e) Such other times as agreed between the parties.
11.
If the Mother fails to comply with Order 3, X shall live with the Mother and spend time with the Father during each NSW school holiday period for the same period as Y is spending with the Father during that holiday period and at such other times as agreed between the parties.
12.
For the purposes of changeovers which do not occur at the children’s schools the parties shall meet at an agreed midway point between the homes of the parties or attend changeover at such other location as agreed.
13.
If the Mother complies with Order 3, immediately upon the Mother identifying where she will be residing with the children, she is to notify the ICL in writing of the closest town centre to the residence and the ICL shall then nominate an independent counsellor for X. The parties shall thereafter do all things necessary to engage X with that nominated counsellor including but not limited to ensuring his attendance at appointments, taking all reasonable recommendations of the counsellor, and equally paying the costs associated with attendance. The ICL is granted leave provide to that counsellor the following documents:
(a) A copy of these Orders
(b) A copy of the Family Report prepared in these proceedings by Ms UU.
(c) A copy of the Child Inclusive Memorandum prepared in these proceedings by Mr VV.
(d) A copy of any Judgment in these proceedings.
14.
The ICL shall remain appointed for a period of 6 months after these Orders and at the expiry of that 6-month period shall be discharged without further Order.
15.
The Mother is restrained from engaging X or Y in any counselling except in accordance with these Orders or with the written consent of the Father.
16.
Within 7 days of the date of these Orders each parent shall download the application known as “Our Family Wizard” for the purposes of communicating with one another in relation to the children and shall utilise the application for the purposes of non-urgent communication in relation to the children.
17.
Each parent shall be entitled to attend any school and extracurricular activities in relation to either Y or X which parents would ordinarily attend.
18.
Neither party shall denigrate the other in the hearing or presence of the children, nor allow any other person to do so.
19.
Neither parent shall physically discipline either child nor allow any other person to do so.
20.
The parties shall each be restrained from changing Y’s school enrolment (except as provided in these Orders) without the written consent of the other parent.
21.
In the event that either party intends to bring Y or X into the presence of Mr WW, the following shall occur:
(a) The proposed times and dates of such contact shall be provided to the other party in writing.
(b) The party proposing the contact shall provide to the other an undertaking to personally supervise X and/or Y during such contact.
22.
The parties or either of them shall make the children available at such time and place at the direction of the ICL for the purposes of the ICL explaining these Orders to the children.
23.
Costs of the appointment of the ICL in the sum of $6,099.15 for each parent, subject to either party obtaining a waiver in relation to costs.
Property:
24.
Within 90 days of the date of these orders, the applicant husband is to make a cash payment to the respondent wife, in the sum of $99,827.00.
25.
The respondent wife is to remove all caveats and transfer to the applicant husband, the whole of her right, title and interest in the property at ‘C Property’, J Street, Suburb K NSW being the whole of land contained in Folio Identifier Lot … (‘the C property’) and any interest that she has in which may remain in the partnership, Franklyn Partnership (‘the partnership’).
26.
In the event that the applicant husband fails to comply with order 24, then within 28 days of default, the parties shall list for sale and sell the C Property with an agent and using a solicitor and at a price agreed between the parties and failing agreement:
(a) At a price nominated by N Valuers.
(b) With an Agent nominated by the President of the Real Estate Institute of NSW.
(c) A solicitor/conveyancer nominated by the President of the NSW Law Society.
27.
Upon sale of the C Property the proceeds shall be distributed:
(a) To pay the costs of sale, including real estate fees.
(b) To pay outstanding rates.
(c) To discharge any mortgage on which the wife is registered as a co-borrower.
(d) Any balance to the husband.
28.
Unless otherwise provided herein, the applicant husband is the sole owner at law and in equity of:
(a) The property known as ‘B Property’, M Street, Suburb K, NSW, being the whole of land contained in Folio Identifier Lot … and Lot … (‘the B property’).
(b) The property known as ‘O Property’, M Street, Suburb K NSW being the whole of land contained in Folio Identifier Lot … (‘the O Property’).
(c) All plant and equipment located on the O Property, the B Property and the C Property.
(d) All assets held by the partnership.
(e) All assets standing in his sole name.
(f) Any superannuation entitlement held by him.
29.
Upon compliance with order 25 herein, the applicant husband shall be solely liable for any and all liability relating to:
(a) The C property.
(b) The B property.
(c) The O property.
(d) The remaining debt to the P Bank for the finance which was secured on the Motor Vehicle 1.
(e) Any liability attached to the partnership.
(f) Any assets standing in his sole name.
(g) Any liability standing in his sole name.
30.
Unless otherwise provided herein, the respondent wife is the sole owner at law and in equity of:
(a) Any business interest owned by her including her business ‘Q Company’ and all furniture fittings from same.
(b) All sale proceeds of the property at E Street, F Town.
(c) Any superannuation entitlement held by her.
(d) Any asset standing in her sole name.
(e) Any funds retained by her from the R insurance claim in 2017.
31.
The respondent wife shall be solely liable for any and all liability relating to:
(a) Any business owned by her.
(b) Any asset standing in her sole name.
(c) Any liability standing in her sole name.
32.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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