GENIM & GENIM - [2018] FamCA 558

FAMILY COURT OF AUSTRALIA

GENIM & GENIM

[2018] FamCA 558

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Where the parties are in conflict – Where the children have been exposed to conflict between the parties – Where the competing proposals of the parties support the children having a meaningful relationship with each of the parents.

FAMILY LAW – PROPERTY – Interim distribution of property – Where the wife seeks an interim property settlement – The Court should take a cautious approach to interim distribution of property.

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(2A), 60CC(3), 61DA, 79

Keats & Keats [2016] FamCAFC 156
Marvel v Marvel (No. 2) [2010] FamCAFC 101
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (Interim property orders) (2011) FLC 93-466

APPLICANT:

Ms Genim

RESPONDENT:

Mr Genim

FILE NUMBER:

ADC

1647

2018

DATE DELIVERED:

27 July 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

18 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Ben-Simon

SOLICITOR FOR THE APPLICANT:

RB Flinders

COUNSEL FOR THE RESPONDENT:	Mr Alevizos
SOLICITOR FOR THE RESPONDENT:	Harry Alevizos, Barrister & Solicitor

Orders

That the husband and wife have equal shared parental responsibility for X born … 2008 (“X”) and Y born … 2009 (“Y”) (collectively “the children”).
The children live with the wife and spend time with the husband as follows:-
(a)Each alternate weekend from the conclusion of school (or 3.30 pm if not a school day) on Thursday to the commencement of school (or 5 pm if not a school day) on Monday commencing 2 August 2018;
(b)For one half of the short term school holidays as may be agreed but in default of agreement from the conclusion of school on the last day of term until 5 pm on the middle Sunday;
(c)For one half of the long Christmas school holidays as may be agreed but in default of agreement from the conclusion of school on the last day of term until 5 pm on the following Friday and each alternate week thereafter;
(d)For Father’s Day from 9 am until 5pm if the children are not already in the husband’s care PROVIDED that the children spend time with the wife from 9 am until 5 pm on Mother’s Day if not already in her care;
(e)From 3 pm Christmas Eve until 3 pm Christmas Day in 2018 and each alternate year thereafter PROVIDED that the children will spend time with the wife from 3 pm Christmas Day until 5 pm Boxing Day in 2018 and in each alternate year thereafter;
(f)From 3 pm Christmas Day until 5 pm Boxing Day in 2019 and each alternate year thereafter PROVIDED that the children will spend time with the wife from 3 pm Christmas Eve until 3 pm Christmas Day in 2019 and each alternate year thereafter;
(g)At other times as may be agreed.
That the children’s time…

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 GENIM & GENIM

Details

AGLC: GENIM & GENIM [2018] FamCA 558
Case: [2018] FamCA 558
Decision Date: 27 July 2018

CaseChat Overview and Summary

In the matter of GENIM & GENIM, Berman J considered applications concerning the children X and Y, and an interim distribution of property. The dispute involved the parents' conflict and its impact on the children, with competing proposals for their living arrangements and time with each parent. The wife also sought an interim property settlement.

The court was required to determine the parenting arrangements for the children, specifically with whom they would live and spend time, and to make orders regarding the interim distribution of property. A key consideration in the parenting orders was the children's exposure to parental conflict and the need to maintain a meaningful relationship with both parents.

Berman J ordered equal shared parental responsibility for the children, with the children to live with the wife and spend time with the husband on a defined schedule, including alternate weekends and half of school holidays. The court also made specific orders regarding handovers and imposed an injunction restraining the removal of the children from Australia for twenty-four months, requesting their names be placed on the Family Law Watchlist. Regarding property, the court ordered the distribution of funds held in the District Court Suitors Fund, including a sum for the wife by way of interim property settlement, a payment to the children's school, and the balance to be held in a joint interest-bearing account pending further order or agreement.

Orders

Orders of the court

That the husband and wife have equal shared parental responsibility for X born … 2008 (“X”) and Y born … 2009 (“Y”) (collectively “the children”).

The children live with the wife and spend time with the husband as follows:-

(a) Each alternate weekend from the conclusion of school (or 3.30 pm if not a school day) on Thursday to the commencement of school (or 5 pm if not a school day) on Monday commencing 2 August 2018;

(b) For one half of the short term school holidays as may be agreed but in default of agreement from the conclusion of school on the last day of term until 5 pm on the middle Sunday;

(c) For one half of the long Christmas school holidays as may be agreed but in default of agreement from the conclusion of school on the last day of term until 5 pm on the following Friday and each alternate week thereafter;

(d) For Father’s Day from 9 am until 5pm if the children are not already in the husband’s care PROVIDED that the children spend time with the wife from 9 am until 5 pm on Mother’s Day if not already in her care;

(e) From 3 pm Christmas Eve until 3 pm Christmas Day in 2018 and each alternate year thereafter PROVIDED that the children will spend time with the wife from 3 pm Christmas Day until 5 pm Boxing Day in 2018 and in each alternate year thereafter;

(f) From 3 pm Christmas Day until 5 pm Boxing Day in 2019 and each alternate year thereafter PROVIDED that the children will spend time with the wife from 3 pm Christmas Eve until 3 pm Christmas Day in 2019 and each alternate year thereafter;

(g) At other times as may be agreed.

That the children’s time with the husband as provided for in paragraph 2(a) is suspended during all school holidays.

That handovers that do not occur to and from the children’s school shall occur at McDonald’s Restaurant, Suburb P.

Until further order the husband Mr Genim born … 1973 and the wife Ms Genim born … 1981, their servants and/or agents are hereby restrained by injunction and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children X born … 2008 and Y born … 2009 from the Commonwealth of Australia for a period of twenty four (24) months.

It is requested that the Australian Federal Police give effect to this order by placing the names of the said children X born ... 2008 and Y born ... 2009 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.

That the husband and wife do all things necessary to ensure that the balance of funds currently held in the District Court Suitors Fund on behalf of the District Court of South Australia pursuant to restraining order made 29 May 2017 be distributed as follows:-

(a) NOTING the purported agreement between the husband and the DPP that a settlement sum be fixed in the amount of THIRTY FIVE THOUSAND DOLLARS ($35,000) such sum as is required to cause the DPP to release the balance of funds currently held in the Suitors Fund;

(b) To the wife’s solicitors for and on behalf of the wife the sum of SEVENTY FIVE THOUSAND DOLLARS ($75,000) by way of interim property settlement;

(d) The balance of the monies to be placed in an interest bearing account in the joint names of the parties with further distributions or withdrawals to be made with the written consent of each party or further order of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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