GALLIMORE & GALLIMORE

Case [2018] FamCA 249


FAMILY COURT OF AUSTRALIA

GALLIMORE & GALLIMORE [2018] FamCA 249

FAMILY LAW – CHILDREN – Where an order is to be made for equal shared parental responsibility – Where the husband seeks an equal time order which is opposed by the wife – Consideration of the words “must consider” in s 65DAA(1) Family Law Act – Where no order is made for equal time – Consideration of other disputed parenting arrangements

FAMILY LAW – PROPERTY – Where the wife made initial contributions and financial contributions by way of receipt of inheritances – Where the husband argues that arrangements with his father for the husband to acquire an interest in a company represented a contribution by the husband’s father on the husband’s behalf – Where the value of the company has increased significantly since separation – Where the wife receives a 2.5 per cent adjustment based on all contributions – Where there is a significant disparity in the parties’ earning capacity – Where the s 79(4)(d) – (g) considerations favour the wife so that she receives a further 5 per cent adjustment

Family Law Act 1975 (Cth)
Explanatory Memorandum of Family Law Amendment (Shared Parental Responsibility) Bill 2005 at 184
Aboriginal & Torres Strait Island Affairs, Minister for & Norvill v Chapman; sub nom Tickner v Chapman (The Hindmarsh Island Bridge case) (1995) 57 FCR 451
Bondelmonte v Bondelmonte (2016) 259 CLR 662
Egan & Egan [2017] FamCA 170
Goode & Goode (2006) FLC 93-286
Khan v Minister for Immigration and Ethnic Affairs (unreported Federal Court of Australia, 11 December 1987)
APPLICANT: Ms Gallimore
RESPONDENT: Mr Gallimore
FILE NUMBER: PAC 11 of 2015
DATE DELIVERED: 23 April 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Parramatta
JUDGMENT OF: Watts J
HEARING DATE: 6 - 8 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie
SOLICITOR FOR THE APPLICANT: Southern Waters Legal
COUNSEL FOR THE RESPONDENT: Mr Dura
SOLICITOR FOR THE RESPONDENT: Willis & Bowring Solicitors

Orders

Parenting

  1. All previous parenting orders are discharged.

  2. The husband and wife have equal shared parental responsibility for the long term care, welfare and development of the children, B (B) born … 2010, C (C) born … 2011 and D (D) born … 2014 (the children).

  3. The parties are to consult each other in the exercise of their equal shared parental responsibility as follows:

    3.1.Each parent will inform the other parent about decisions to be made including, but not limited to: the children’s education (both current and future), the children’s religious and cultural upbringing and the children’s health

    3.2.Each parent will consult the other on terms that they agree; and

    3.3.Each parent will make a genuine effort to come to a joint decision.

  4. Notwithstanding the provision of order 2, the wife shall be responsible for the daily care, welfare and development of the children when they are living with and spending time with her.

  5. Notwithstanding the provision of order 2, the husband shall be responsible for the daily care, welfare and development of the children when they…

Continue reading GALLIMORE & GALLIMORE

Sign in free to access the full text

Details
AGLC
GALLIMORE & GALLIMORE [2018] FamCA 249
Case
[2018] FamCA 249
Decision Date

CaseChat Overview and Summary

The case of *Gallimore & Gallimore* involved a dispute between a husband and wife concerning parenting arrangements for their three children and the division of their property. The matter came before Watts J.

The court was required to determine several legal issues. In relation to parenting, the court had to consider the meaning and application of the phrase "must consider" within section 65DAA(1) of the *Family Law Act 1975* concerning orders for equal shared parental responsibility, and whether an order for equal time was appropriate. The court also had to consider other disputed parenting arrangements. In relation to property, the court was required to assess the parties' contributions, including initial and financial contributions by way of inheritance, and whether arrangements concerning a company represented a contribution on behalf of the husband's father. The court also needed to consider the significant increase in the company's value post-separation and the disparity in the parties' earning capacities when making adjustments under section 79(4)(d)-(g) of the *Family Law Act 1975*.

Watts J ordered that the parties have equal shared parental responsibility for the children, with the wife having the children living with her and specific time arrangements for the husband to spend with the children. The court's reasoning regarding parenting involved a critical assessment of expert evidence, particularly the aspirational nature of some recommendations and the husband's resistance to sensible proposals, which indicated a lack of focus on the children's adjustment to two different household environments. In relation to property, the court made orders for the division of assets, including a payment from the husband to the wife, the transfer of specific properties, and the retention of a company by the husband, with adjustments made to account for contributions and future needs, including a disparity in earning capacity. The order for spousal maintenance was discharged.

Orders

Orders of the court

Parenting

1.

All previous parenting orders are discharged.

2.

The husband and wife have equal shared parental responsibility for the long term care, welfare and development of the children, B (B) born … 2010, C (C) born … 2011 and D (D) born … 2014 (the children).

3.

The parties are to consult each other in the exercise of their equal shared parental responsibility as follows:

3.1. Each parent will inform the other parent about decisions to be made including, but not limited to: the children’s education (both current and future), the children’s religious and cultural upbringing and the children’s health

3.2. Each parent will consult the other on terms that they agree; and

3.3. Each parent will make a genuine effort to come to a joint decision.

4.

Notwithstanding the provision of order 2, the wife shall be responsible for the daily care, welfare and development of the children when they are living with and spending time with her.

5.

Notwithstanding the provision of order 2, the husband shall be responsible for the daily care, welfare and development of the children when they are living with and spending time with him.

6.

The children live with the wife unless otherwise specified in these orders.

7.

Until D attains the age of 5 on 25 January 2019, the children spend time with the husband in a two-weekly cycle as follows:

7.1. In week 1 from 5pm Friday until 5pm Monday.

7.2. In week 2 from Monday after school or pre-school until 5pm.

8.

Upon D attaining the age of 5 on 25 January 2019 and thereafter, the children spend time with the husband in a two-weekly cycle as follows:

8.1. In week 1 from 5pm Friday until 5pm Monday.

8.2. In week 2 from Monday after school or pre-school until the commencement of school or preschool on Tuesday.

9.

The children will spend the following additional time with the wife if the children are not already spending with the wife on that day:

The Children's Birthday

9.1. On B's birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to B’s birthday until the commencement of school or 10am the day of her birthday.

9.2. On C's birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to C’s birthday until the commencement of school or 10am the day of her birthday.

9.3. On D’s birthday as agreed and failing agreement from 3pm the day prior to D’s birthday until 10am the day of his birthday.

Wife’s Birthday

9.4. On the wife’s birthday from after school or 3pm the day immediately prior to the wife’s birthday to 5.30pm the day of the wife’s birthday.

Mother’s Day

9.5. Where Mother’s Day does not fall on a weekend the wife is spending time with the children, then for that weekend the children spend time with the wife from 5pm the day immediately prior to Mother’s Day until 5pm on Mother’s Day.

Christmas Time

9.6. Commencing 2018, from 9am on Christmas Eve until 3pm on Christmas Day and thereafter in each even numbered year.

9.7. Commencing 2019, from 3pm on Christmas Day until 5pm Boxing Day and thereafter in each odd numbered year.

Easter Time

9.8. Commencing in 2020, from 9am Good Friday to 5pm Easter Monday and continuing thereafter in each even numbered year.

Holiday Time

9.9. Upon the commencement of order 10.10 and subject to the orders about “Christmas Time”, the wife shall be at liberty to elect a 14 day block period to enable her to travel with the children provided that she makes such election and provides the husband with written notice of such election no less than 6 weeks prior to the elected block but otherwise the children shall spend time with their father during Christmas school holidays totalling the time specified in order 10.10.

10.

The children will spend the following additional time with the husband if the children are not already spending with the husband on that day:

The Children's Birthday

10.1. On B's birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to B’s birthday until the commencement of school or 10am the day of her birthday.

10.2. On C's birthday each year as agreed and failing agreement from the conclusion of school or 3pm the day prior to C’s birthday until the commencement of school or 10am the day of her birthday.

10.3. On D’s birthday as agreed and failing agreement from 3pm the day prior to D’s birthday until 10am the day of his birthday.

Husband’s Birthday

10.4. From 9am on the husband’s birthday to the commencement of school or 9am the morning following the husband’s birthday.

Father’s Day

10.5. Where Father’s Day does not fall on a weekend the husband is spending time with the children, then for that weekend the children spend time with the husband from 9am on Father’s Day to the commencement of school or 9am the day following Father’s Day.

Christmas Time

10.6. Commencing 2018, from 3pm on Christmas Day until 5pm on Boxing Day and thereafter in each even numbered year.

10.7. Commencing 2019 from 9am on Christmas Eve until 3pm on Christmas Day each alternate year and thereafter in each odd numbered year.

Easter

10.8. Commencing in 2019 from 9am Good Friday to 5pm Easter Monday continuing thereafter in each odd numbered year.

School holidays

10.9. In all mid-year school holiday periods as follows:

10.9.1. Commencing in 2018 the husband shall have five days in the first week of the Term 2 school holidays and failing agreement from 4pm Friday to 4pm Wednesday (provided that that does not fall on Easter weekend in which circumstances the time is to be spent in the other week of the school holidays)

10.9.2. In Term 3 2018 and Term 1 2019 the children will spend time with their father for a six day block period as agreed between the parties and failing agreement in the first week from 4pm Friday to 4pm Thursday.

10.9.3. Commencing in second term 2019 and continuing thereafter, for one half of the school holiday periods at times to be agreed between the parties and failing agreement for the first week in all odd numbered years and the second week in all even numbered years.

Christmas time

10.10. In the 2018/2019 and the 2019/2020 Christmas school holidays the children spend three, six night block periods with their father such that his time pursuant to the term arrangements in orders 7 and 8 is extended to facilitate a six night block.

10.11. From 2020/2021, the time gazetted by the NSW Department of Education (or other such name as it may subsequently be known) for Christmas school holidays to be divided equally between the parties by way of agreement and failing agreement, in each even year for the first half and in each odd year for the second half of the holiday period, subject to the orders in relation to “Christmas Time” and the provisions in order 8 are suspended during the Christmas school holidays.

Changeovers

11.

In the event that changeovers do not take place at school, the party who has the children shall deliver them to the other parent at the time of changeover.

Electronic Communication

12.

The wife and husband have reasonable communication, including face time and telephone with the children at all times when the children are spending time with the other parent as agreed and failing agreement between 6.00pm- 7.00pm each evening. The husband shall provide an iPad for each household to facilitate FaceTime calls.

13.

Neither party will unreasonably prevent the children from telephoning the other parent.

Change of Health

14.

Each parent is to notify the other as expeditiously as possible and not more than 24 hours after the event occurring, of any matters relating to the health or wellbeing of the children (save for common coughs and colds), which require the attention of a medical practitioner or health professional with both parents acknowledging that they each have an equal right to participate in the decisions on the appropriate treatment to be administered to the children.

15.

The husband and wife contact the school and or day care to ensure they receive a copy of school reports, photographs and newsletters with such costs to be borne by each parent individually.

16.

The husband and wife be entitled to discuss the children's educational progress with the children's teacher and both parents be at liberty to attend parent teacher interviews and any other activity at the school/s that the children would ordinarily attend.

17.

These orders authorise any doctor, hospital and/or health professional to provide to the Wife and/or Husband any information concerning the health of the children

18.

Each parent will ensure that when the children spend time with that parent that they attend with any clothing, books or school paper which they require for school or extra-curricular activities.

19.

The husband and wife agree that they will ensure that the children attend all extra-curricular activities inclusive of any sports event of which the children may be enrolled. The wife and husband need to agree and jointly consent to the enrolment of the child in any extra-curricular activities.

20.

Each parent will ensure that the items that were sent with the children at the changeover are returned at the conclusion of the time that the children are spending with that parent.

21.

Each party is to advise the other of their current address, telephone number and each nominated email address.

22.

The wife is to inform the husband and the husband is to inform the wife within three (3) days of either party moving residence, the address of that residence and the respective contact telephone numbers in the event of change.

Conduct

23.

Neither party denigrate the other party or any other future partner, family members or friends whilst in the presence or hearing of the children or allow, with their knowledge, a third party to do so.

24.

Each party will encourage, and not undermine, the children's relationship with the other party.

Notice

25.

In the event that either the husband or the wife are unable to spend time with the children for a period of in excess of 12 hours due to work or personal commitments, he or she will provide reasonable notice in writing to the other parent of their inability to spend such time with the children.

Passports

26.

Within 28 days from the date of these orders the wife shall provide to the husband applications for Australian passports for each of the children and the husband shall, within 7 days of receipt of the applications, sign and return the applications to the wife to allow the wife to seek the issue of passports for each of the children.

27.

Thereafter the parties shall do all acts and things and sign all documents as shall be necessary to ensure that the children have a valid Australian passport at all times and pay the costs of such passport in equal shares.

28.

The children’s passports shall be retained and held by the wife and shall be provided to the husband by agreement between the parties and subject to order 30.

Travel

29.

The wife and husband shall be permitted to remove the children from the Commonwealth of Australia, provided that:

29.1. the travelling parent shall provide the other parent with 6 weeks’ notice of their intention to travel with the children; and

29.2. the travelling parent shall provide the other parent with a full itinerary of their proposed travel including details of the mode of transportation, return flights/tickets (including flight numbers), transfer, accommodation and contact details for the children not less than 28 days prior to departure; and

29.3. within 5 days of receiving the information as provided for in order 29.2 the non-travelling parent shall provide the travelling parent with written notice of their consent for the children to travel and such consent cannot be unreasonably withheld; and

29.4. the travelling party shall be responsible for the payment of the children’s flights and accommodation during the time they are travelling with them; and

29.5. such trip shall not interfere with the non-travelling parent’s time with the children in accordance with these orders and shall occur in the times the parties spend with the children in the school holiday unless it is otherwise agreed between the parties in writing; and

29.6. Neither party will travel overseas with the children until D turns 6 save an except for travelling to New Zealand; and

29.7. Upon D turning 6, and until he turns 8, neither party will travel overseas for more than 7 days.

30.

The wife shall hold the children’s passports from time to time and make the children’s passports available to the husband upon his compliance with order 29 should he elect to travel with the children and the husband shall return the children’s passports to the wife within 7 days of the children returning.

PROPERTY ORDERS

31.

An order be made pursuant to section 79 of the Family Law Act 1975 in terms of paragraphs 32-41 below.

32.

Within 8 weeks from the date of this order, the husband cause to be paid to the wife of sum $186,622.

33.

Within 8 weeks from the date of this order, the wife transfer to the husband the monies in E Credit Union account …52 in the approximate sum of $290,511.

34.

Within 8 weeks from the date of this order, the husband shall do all acts and sign all documents necessary to transfer to the wife all his right, title and interest in the property situated at and known as F Street, Suburb G, New South Wales being the whole of the land described in folio identifier … (“the Suburb G property”) on the following terms and conditions:

34.1. The husband deliver to the wife a signed transfer in registrable form; and

34.2. The husband sign all documents and do all things necessary to discharge the mortgage to Commonwealth Bank of Australia (…71).

35.

Within 8 weeks from the date of this order, the husband shall do all acts and sign all documents necessary to transfer to the wife all his right, title and interest in the property situated, at and known as, H Street, Suburb J, New South Wales, being the whole of the land described in folio identifier … (“the Suburb J property”) on the following terms and conditions:

35.1. The husband deliver to the wife a signed transfer in registrable form; and

35.2. The husband sign all documents and do all things necessary to discharge the mortgage to K Bank (…90).

36.

The husband retain to the exclusion of the wife the entity known as “L Pty Ltd” ACN … and the wife is hereby declared to have no legal or equitable interest in that entity.

37.

The husband indemnify and keep indemnified against any current or future liability the wife in respect of any creditors of L Pty Ltd including but not limited to the debt due and payable to the Australian Taxation Office and the husband shall do all things and sign all necessary documents to give effect to this indemnity.

38.

The wife relinquish any right, title or interest she may hold in the 1/6 interest held by the husband in the boat.

39.

The husband as the Director of L Pty Ltd, within 8 weeks from the date of these orders, take all steps and do all things as necessary and sign all such documents as to transfer to the wife the motor vehicle currently registered in the name of L Pty Ltd and driven by the wife into her sole name and thereafter the wife is to assume responsibility for all payments and expenses associated with that motor vehicle.

40.

Within 8 weeks from the date of this order, the parties sign all such documentation required by E Credit Union to cause the joint bank account currently held between them being account number …49 to be closed and any funds remaining in that bank account be paid to the wife.

41.

Other than as provided for in this order, the wife and husband be declared to be and have the sole right, title and beneficial interest and ownership in:

41.1. Any chattels, goods, jewellery, furnishings, and other types of property which are at the date of these orders in their respective possession.

41.2. Any monies, share portfolios, debentures, superannuation entitlements, motor vehicles and any other assets which stand in their sole name respectively as at the date of these orders.

41.3. Unless otherwise specifically referred to in this order that each party shall indemnify and keep the other indemnified with respect of any liabilities, loan or personal debts to which either of them are respectfully obligated by reason of the operation of law or is associated with any asset they retain.

Spousal Maintenance

42.

The order for spousal maintenance dated 16 March 2016 be discharged.

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

Notwithstanding that recommendation about equal time, when Dr P makes his recommendation under the heading of “substantial and significant time”, he says at [87]:The current arrangements could be [in his oral evidence [Dr P] sought to amend his report by adding the word ‘barely’ at this point in this sentence] considered sufficient to satisfy the concept of “substantial and significant time” spent [sic] the children with each party. The current arrangement allows [Mr Gallimore] to have contact with the children on weekends, and also enables him to have involvement in extracurricular activities. It is in the clinician’s view [sic] that the children would benefit from contact increasing from Friday to Sunday afternoon to Friday to Monday morning (but still maintaining responsibility for Monday afternoon gym), and then have an overnight stay on the alternate Monday to Tuesday morning (which is then 4 nights out of 14). This could be trialled for 12 months and then incremented by another night (approx. in January 2019), then increment another night again each year until equal time is achieved (unless agreed earlier). It is difficult to discern from a reading of those two paragraphs in Dr P’s report how those two paragraphs could stand together or otherwise be reconciled. It is difficult to understand on the face of the report, how Dr P could conclude that equal time was not in the children’s best interests in June 2017 but assume that it would be by 2020. In oral evidence, Dr P indicated that his recommendation in [85] of the report was based upon the way the parties presented to him at the time of the interviews for the report in June 2017 and the facts as he knew them at that time. Dr P said that in general terms the recommendations that he made in [87] of his report were based on hope and were ‘aspirational’. Counsel for the wife submitted that what is in [87] of Dr P’s report was a ‘triumph of optimism over reality. Hope over history’. There is substance in that submission. Recommendations based on hope rather than an analysis of the possibilities that present themselves on the facts of the case cannot be given much weight. In oral evidence, Dr P said the principle contra-indicator to equal time was having communication with oppositional responses with one parent almost knowingly creating a different routine from the other household environment. He said this results in an equal care arrangement becoming even more difficult and it is incredibly difficult for a young child to make that work. The evidence in this case prevents a finding of that nature. On the other hand, Dr P gave very strong evidence about the advantages to the children of the wife’s proposal for changeover. The husband still resisted that proposal in final submissions. His resistance demonstrates his rigidity in engaging with a sensible proposal. As discussed below, Dr P was concerned that the husband’s reluctance to adopt his recommendation to change the current arrangements in relation to changeover showed little focus on how the children deal with the two different worlds in each household.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.