FAMILY COURT OF AUSTRALIA
| GANEM & GANEM AND ANOR | [2014] FamCA 1177 |
| FAMILY LAW – CHILDREN – With whom a child lives – Best Interests of the child – Where the mother seeks sole parental responsibility – Where there are allegations of sexual abuse against the child perpetrated by the mother’s new partner – Where such allegations are unsubstantiated – Where there are allegations of family violence perpetrated by the father– Where the court finds there was family violence – Where the father makes unsubstantiated claims of physical abuse of the child by the mother and her new partner – Where child’s primary attachment is the mother – Where child has close sibling bonds with older two siblings – Where the parents are unlikely to facilitate shared time with the child – Where there is a need to remove the child from the conflict between the parents –Where the presumption of shared parental responsibility is rebutted – Where mother has been the child’s primary carer – Where court satisfied it is in the best interest of the child to live with the mother. |
FAMILY LAW – PROPERTY – Final alteration of property interests – Where it is just and equitable to make orders – Where there is evidence of non-disclosure on behalf of the husband – Where a claim relating to Kennon & Kennon is not made out – Where the wife made significant non-financial contributions during the course of the relationship.
| Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA, 79(2), 79(4), 75(2)(o) |
Jones & Dunkel (1959) 101 CLR 298
| In the Marriage of Kennon (1997) 22 Fam LR 1 Black & Kellner (1992) FLC 92-287 15 FamLR 343 Weir & Weir [1993] FLC 92-338 Kannis & Kannis [2002] FamCA 1150 |
| APPLICANT: | Ms Ganem |
| RESPONDENT: | Mr Ganem |
| INTERVENOR: | F Partners |
| INDEPENDENT CHILDREN’S LAWYER: | Watts McCray Lawyers |
| FILE NUMBER: | SYC | 931 | of | 2012 |
| DATE DELIVERED: | 24 December 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 15-19 and 26 September 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cairns |
| SOLICITOR FOR THE APPLICANT: | Mia Mason Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Respondent Father in Person |
| SOLICITOR FOR THE INTERVENOR: | F Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ford |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Watts McCray Lawyers |
Orders
Parenting Orders
That Ms Ganem (“the mother”) have sole parental responsibility for K Ganem (“the child”) born … 2006.
The child shall live with the mother.
That Mr Ganem (“the father”) shall spend no time with the child.
That the father advise the mother of his current home address, email address and contact telephone numbers (including both landline and mobile number if applicable) and shall advise her of any changes to these details within seven (7) days of such change occurring.
That the father is hereby restrained from applying for or obtaining any passport for or in respect of the child from the Commonwealth of Australia, without first obtaining the leave of this Court.
That the father is…
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- AGLC
- Ganem and Ganem & Anor [2014] FamCA 1177
- Case
- [2014] FamCA 1177
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were to determine the best interests of the child, specifically whether the presumption of shared parental responsibility should be rebutted, and with whom the child should live. The court was required to weigh the evidence of alleged abuse, family violence, the child's primary attachment to the mother, sibling bonds, and the parents' capacity to facilitate shared time and manage conflict.
Aldridge J reasoned that the presumption of shared parental responsibility was rebutted due to the established family violence and the parents' inability to facilitate shared time and minimise conflict. The court found that the child's primary attachment was with the mother and that maintaining close sibling bonds was important. Considering the need to remove the child from the parental conflict and the mother's role as the primary carer, the court was satisfied that it was in the child's best interests to live with the mother.
Consequently, the court made parenting orders granting the mother sole parental responsibility for the child and ordering that the child live with the mother. The father was ordered to spend no time with the child and was subject to various restraints, including being prohibited from applying for or obtaining a passport for the child or removing the child from Australia without court leave. The orders also included detailed property division and financial arrangements between the parties.
Orders
Orders of the court
Parenting Orders
1.
That Ms Ganem (“the mother”) have sole parental responsibility for K Ganem (“the child”) born … 2006.
2.
The child shall live with the mother.
3.
That Mr Ganem (“the father”) shall spend no time with the child.
4.
That the father advise the mother of his current home address, email address and contact telephone numbers (including both landline and mobile number if applicable) and shall advise her of any changes to these details within seven (7) days of such change occurring.
5.
That the father is hereby restrained from applying for or obtaining any passport for or in respect of the child from the Commonwealth of Australia, without first obtaining the leave of this Court.
6.
That the father is hereby restrained from removing the child from the Commonwealth of Australia, unless the parties agree in writing that he may do so.
7.
That the Court requests that the Australia Federal Police remove the names of the child K Ganem (born … 2006) from Airport Watch Lists at all points of international arrivals and departures in Australia, and that the mother have liberty to apply in the event of any difficulties in obtaining a passport for the child and/or having the child’s names removed from the Airport Watch List.
8.
That during any period referred to in these orders, in the event of the child being hospitalised or receiving medical attention for a serious illness or medical emergency, the mother shall notify the father as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital, and shall ensure that all treating medical and allied professionals are able to speak with each parent as to the care of the child.
9.
A copy of these orders will be sufficient authority for either parent, at their own expense, to approach the child’s school to forward directly to them copies of the child’s school reports, merit cards, school photograph order forms, and any other notice(s) relating to the child’s academic and extra-curricular activities.
10.
That the respondent father be restrained from coming into contact with the child.
11.
That except for the purpose of effecting these orders, the father is hereby restrained from:
(a) Approaching or going within 100 metres of the child or the mother;
(b) Communicating with the child or the mother;
(c) Approaching or going within 100 metres of the residence, place of employment and/or study of the child or the mother;
(d) Approaching or going within 100 metres of the child or the mother at any locations;
(e) Harassing, molesting, intimidating or stalking the child or the mother.
12.
That neither parent shall discuss these proceedings in the presence or hearing range of the child and shall do all such things to ensure that no third person discusses these proceedings in the presence or hearing range of the child.
13.
That neither parent shall denigrate the other parent (their partner or family) in the presence or hearing range of the child and shall do all such things to ensure that no third party denigrates the other parent (their partner or family) in the presence or hearing range of the child.
14.
That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975(Cth) (“the Act”), the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties that adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.
Property Orders
15.
That within twenty eight (28) days of the date of this Order, the father shall take all necessary steps and execute all necessary documents to transfer to the mother, at her expense, all his right, title and interest in the property situated at and known as O Road, Town L, NSW … being the whole of the land contained in the Certificate of Title Folio Identifier … (“the L property”) and that simultaneously upon this transfer the mother shall indemnify and keep indemnified, the father in respect of any and all liabilities attached to the L property including taxes, insurances, rates and outgoings, and provide to the mother exclusive occupation of the L property.
16.
That the parties shall forthwith take all necessary steps to dissolve the “Ganem Partnership”.
17.
That within twenty eight (28) days of the date of this Order, and simultaneously with Order 15 the father shall take necessary steps and execute all necessary documents to transfer to the mother, at her expense, all his right, title and interest in the property situated at and known as E Street, Suburb H NSW …, being the whole of the land contained in the Certificate of Title Folio Identifier 1/… to 3/… (“the H property”).
18.
That within twenty-eight (28) days of the date of this Order, the mother shall do all such things and sign all necessary documents to refinance the current joint debt with the National Australia Bank and cause the mortgage to the National Australia Bank (Mortgage Registered No …26) secured against the H property, to be discharged.
19.
That from the date of these Orders until the refinancing referred to in Order 17 hereof, the mother shall be responsible for 100 per cent of the mortgage repayments on the H property and the mother shall indemnify and keep indemnified, the father against all responsibility and liability from rates, taxes, charges, insurance, outgoings and expenses due and accruing with respect to the H property.
20.
That the husband shall forthwith take all necessary steps to transfer to the ownership and possession of the wife all other assets of the Ganem Partnership and the wife shall indemnify the husband against all other liabilities of the partnership including any outstanding taxation obligations.
21.
That the husband is to forthwith take all necessary steps to release the wife from any claim to any outstanding profits or distributions.
22.
That the parties are to take all necessary steps to prepare, sign and lodge any outstanding tax returns for the Ganem Partnership.
23.
That within twenty-eight (28) days of the date of this Order, and simultaneously with Order 15, the mother shall take all necessary steps and execute all necessary documents to transfer to the father, at his expense, all her right, title and interest in the property situated at and known as X Street, Suburb M, NSW … being the whole of the land contained in the Certificate of Title Folio Identifier … (“the M property”) and that simultaneously upon this transfer the father shall indemnify and keep indemnified, the mother in respect of any and all liabilities attached to the M property including any outstanding taxes, insurances, council rates and outgoings, and provide to the father exclusive occupation of the M property.
24.
That within seven (7) days of the date of these Orders, the father shall do such things and sign all such documents necessary to transfer to the mother all his right, title and interest in the Toyota … Motor Vehicle (Registration Number: …) so that the mother becomes the sole owner of this vehicle and the mother shall thereafter indemnify the father against all liability and responsibility in respect to this motor vehicle.
25.
That within seven (7) days of the date of these orders the father shall do such things and sign all such documents necessary to transfer to the parties’ son, J, all his right, title and interest in the Subaru … Motor Vehicle (Registration number: …) so that J becomes the sole owner of this vehicle and the mother shall thereafter indemnify the father against all liability and responsibility in respect to this motor vehicle.
26.
That within seven (7) days of the date of these orders the parties shall do such things and sign all such documents necessary to transfer to the parties’ daughter, G, all their right, title and interest in the vehicle currently used by her so that G becomes the sole owner of this vehicle and the mother shall thereafter indemnify the father against all liability and responsibility in respect to this motor vehicle.
27.
That the father shall be declared to be the sole owner of any other motor vehicle currently in his possession.
28.
With regard to the company known as “Ganem Pty Ltd” (ACN …) (“the company”):-
(a) The mother will within fourteen (14) days of these Orders provide to the father all documentation necessary to transfer to the father all her shares in the company and any of the assets of the company held by her including any plant or machinery of this company and the father will take all necessary steps and do such things as maybe required to cause the company to discharge any liability the mother may have to the company, and the father shall indemnify and keep indemnified, the mother in respect of any and all liabilities of this company, including any credit card facility, to any third parties including the National Australia Bank.
(b) That any past or current tax debts (including BAS) arising from the company shall be the responsibility of the father and he shall indemnify the mother against all responsibility and liability in respect of such debts.
(c) The mother is to take all necessary steps to release the company from any obligation to pay to her any unpaid dividends that she might, but for these orders, be entitled.
29.
Each party shall be solely liable for and indemnify the other against any liability encumbering any property they retain pursuant to these Orders.
30.
That the father shall, as between the mother and father, be declared to be solely responsible for all monies owed to Y School in relation to J’s school fees for 2013 (as well as all legal costs and interest due and payable) and the father shall indemnify and hold indemnified the mother in respect of this debt.
31.
That within twenty-eight (28) days of the date of these Orders, the father shall cause to be paid to Y School all outstanding monies in relation to the proceedings (No.2014/…) in the Local Court at Town L including outstanding school fees, legal costs and interest due and payable.
32.
That 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) (“the Act”) 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.
33.
That the parties shall retain all of his/her right, title and interest in the following to the exclusion of the other party:
(b) all personal property in his/her respective possession or control;
(c) any monies currently held on deposit with any bank, credit union or other financial institution in his/her name;
(d) any superannuation funds in his/her sole name; and
(e) any debts or personal loans in his/her sole name.
34.
The application for a child support departure order is dismissed.
35.
The Court declares that Interveners’ fair and reasonable remuneration pursuant to Order 7 of the orders made by this honourable Court on 5 December 2012 to be $96 727.17.
36.
The Court orders the father to pay the sum of $96 727.17 to the Interveners within 28 days of these Orders, and that thereafter, if unpaid that sum shall bear interest in accordance with the Family Law Rules.
37.
The mother and father shall, within twenty-eight (28) days of these Orders, pay to the Independent Children’s Lawyer her costs in the sum of $10 255 each, unless exempted from payment by the Legal Aid Commission of NSW.
38.
That all applications and cross applications be and are hereby dismissed.
39.
That all issues be removed from the Active Pending Cases List.
40.
That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.
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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