FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gezim & Osman [2024] FedCFamC2F 288
File number: ADC 2600 of 2021 Judgment of: JUDGE BROWN Date of judgment: 12 March 2024 Catchwords: FAMILY LAW – Children – parenting arrangement for two children aged 11 and 13 – no significant interaction between the children and the father since separation – whether a change in the arrangement would be in the children’s best interest – presumption of equal shared responsibility rebutted – allegations of family violence perpetrated by the father – best interests – matters to be considered.
FAMILY LAW - Property – property settlement – marriage of 24 years – modest asset pool – assessment of financial and non-financial contribution – the need for the financial relationship between the parties to be concluded – after separation the husband has occupied the matrimonial home – assessment of future borrowing capacity of the parties - considerations of just and equity
Legislation: Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) Pts VII, VIII, VIIIB, ss 4AB, 60CA, 60CC, 61DA, 62G, 65DAA, 75(2), 79
Cases cited: Biltoft & Biltoft (1995) 19 Fam LR 82
NHC & RCH (2004) 32 Fam LR 518
Clauson v Clauson (1995) 18 Fam LR 693
Eaby & Speelman (2015) FamCAFC 104
Farnham & Farnham [2022] FedCFamC2F 83
Ferraro v Ferraro (1992) 16 Fam LR 1
Fox v Percy (2003) 214 CLR 118
Hickey & Hickey (2003) 30 Fam LR 355
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Kowaliw (1981) FLC 91-092
In the Marriage of Omacini (2005) 33 Fam LR 134
In the Marriage of Townsend (1994) 18 Fam LR 505
Jurchenko & Foster (2014) 51 Fam LR 588
M & M [1998] FamCA 42
Mazorski v Albright (2007) 37 Fam LR 518
Phillips & Phillips (2002) 168 FLR 438
Russell & Russell (1999) 25 Fam LR 629
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi [2018] FamCAFC 173
Watson & Ling [2013] FamCA 57
Division: Division 2 Family Law Number of paragraphs: 234 Date of hearing: 27 & 28 November 2023 Place: Adelaide Counsel for the Applicant: Mr Nyamirandu Solicitor for the Applicant: Morgan and Freeman Lawyers Counsel for the Respondent: Mr Lipari Solicitor for the Respondent: Matthew Mitchell Solicitors ORDERS
ADC 2600 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GEZIM
Applicant
AND: MR OSMAN
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
12 MARCH 2024
THE COURT ORDERS THAT:
Property
1.Within sixty (60) days of the date of this Order the husband pay to the wife the sum of ONE HUNDRED AND FORTY THOUSAND DOLLARS ($140,000.00).
2.Should the husband default in the cash settlement sum in paragraph 1 herein the property situated at B Street, Suburb C (hereinafter referred to as the Suburb C property) shall be listed for sale and the following shall apply:
(a)the husband and the wife shall do all acts and things and…
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CaseChat Overview and Summary
The court addressed several legal issues, including the presumption of equal shared responsibility under the Family Law Act 1975, which was rebutted due to the lack of interaction between the father and the children. Additionally, the court considered allegations of family violence perpetrated by the father, which influenced the determination of the children's best interests. The court was tasked with weighing various factors to decide whether a change in the parenting arrangement would benefit the children.
In its reasoning, the court emphasised the paramountcy of the children's best interests, taking into account their minimal interaction with the father and the allegations of family violence. The court found that the existing arrangement, which granted sole parental responsibility to the mother, aligned with the children's best interests. The court ordered that the mother have sole parental responsibility for the children, while the father would spend time with them each Saturday from 9:00 am to 7:00 pm. Furthermore, the court mandated that a Specific Issues Report be prepared by a Family Consultant to assess the children's views on overnight and holiday time with their father, the nature of their relationship with him, and any other pertinent matters.
Regarding the property settlement, the court assessed the financial and non-financial contributions of both parties during their 24-year marriage. The modest asset pool included the matrimonial home, which the husband had occupied post-separation. The court ordered the husband to pay the wife $140,000 within 60 days or face the sale of the matrimonial home. The sale proceeds were to be divided 60% to the wife and 40% to the husband, after settling any encumbrances and costs. Each party retained specific personal assets, such as their respective motor vehicles, superannuation, savings, and personal effects.
Orders
Orders of the court
ADC 2600 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS GEZIM
Applicant
AND:
MR OSMAN
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
12 MARCH 2024
THE COURT ORDERS THAT:
Property
1. Within sixty (60) days of the date of this Order the husband pay to the wife the sum of ONE HUNDRED AND FORTY THOUSAND DOLLARS ($140,000.00).
2. Should the husband default in the cash settlement sum in paragraph 1 herein the property situated at B Street, Suburb C (hereinafter referred to as the Suburb C property) shall be listed for sale and the following shall apply:
(a) the husband and the wife shall do all acts and things and sign all necessary documents to list for sale by private treaty the Suburb C property and for that purpose the following shall apply:
(i) With such real estate agent as agreed between the parties and failing agreement as nominated by the Secretary of the Real Estate Institute of South Australia;
(ii) The list price of the Suburb C property shall be such amount as agreed between the parties and failing agreement within 14 days the list price will be as nominated by the real estate agent;
(iii) The parties are to co-operate in every way with the real estate agent in relation to the marketing of the Suburb C property for sale including making the key readily available, allowing inspection of the Suburb C property at all times reasonably requested by the agent and ensuring that the Suburb C property is clean, neat and in good order at the time of inspection by any prospective buyer;
(iv) The parties shall each pay to the estate agent one half of any sums requested for advertising or sale expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties;
(v) The Contract of Sale shall provide for completion within 30 days after the date of the contract or any other time period as agreed by the parties;
(vi) The proceeds of sale of the Suburb C property shall be paid in the following manner and priority:
A. To discharge any registered mortgage/s against the Suburb C property;
B. Any other encumbrance affecting the property including rates, taxes and other reasonable expenses;
C. To meet all reasonable costs of sale, including payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
D. Payment of the conveyancing costs and outlays relating to the sale, including reimbursement to a party for any advertising or sale expenses as contemplated in these Orders (if applicable);
E. The remaining sale proceeds be paid 60% to the wife and 40% to the husband.
3. Should the husband fail to place the Suburb C property on the market for sale or fails to sign any documents necessary to place the Suburb C property on the market for sale within 14 days of any request in writing from the wife, the wife be at liberty to apply to the Court for enforcement orders on short notice.
4. Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:
(a) Subject to the satisfaction of the payment stipulated in order one hereof the Suburb C property;
(b) His motor vehicle;
(c) His superannuation entitlements standing in his own name;
(d) Any savings standing in his name;
(e) His personal effects and furniture currently in his possession at the Suburb C property.
5. Including but without limiting the effect hereof, the wife shall retain for his sole use and benefit absolutely free from any further claim or demand of the husband:
(a) Her motor vehicle;
(b) Any saving standing in her name;
(c) Her superannuation entitlements standing in her own name;
(d) Her personal effects and all furniture and household effects currently in her possession.
Parenting
6. The mother, Ms Gezim have sole parental responsibility for making decisions concerning the long term care, welfare and development for X born in 2010 and Y born in 2012 (hereinafter referred to as ‘the children’).
7. The father, Mr Osman, spend time with the children each Saturday from 9.00am to 7.00pm.
8. Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and the children are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a Specific Issues Report, with such report to be released prior to 30 September 2024.
9. The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
10. Pursuant to order 6 herein, the Family Consultant shall provide a written report to the Court which is to include both interviews and observed interactions and the report shall deal with the following matters:
(a) The children’s views as to overnight and holiday time with their father;
(b) Assessment of the nature of their relationship with their father; and
(c) Any other matter which the Court Child Expert considers important to the best interests of the children.
11. The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a) Material produced by a Child Protection authority;
(b) Material produced by a Police Service;
(c) Any other relevant material presently before the Court in admissible form.
12. Should the parties remain in dispute following the release of the Specific Issues Report, pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a) Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and
(b) Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in order 10(a).
13. The matter shall be referred to the Executive Director – National Registrar Operations and Practice for allocation and listing of the FDR Conference dates.
Part 1 of the FDR Conference
14. Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within two (2) days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
15. Unless otherwise directed by the Registrar conducting the FDR Conference, the Independent Children’s Lawyer’s appearance shall be excused from Part 1 of the FDR Conference.
16. Not later than 4.00 pm seven (7) days prior to Part 1 of the FDR Conference, each party must:
(a) ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b) ensure that any private expert report that is relevant to the proceedings has been filed;
(c) provide to the Court by email and to the other party a single collated bundle of documents comprising:
(i) a Confidential Outline of Case (Dispute Resolution);
(ii) a detailed minute of Orders Sought;
(iii) details of any previous or current family violence orders; and
(iv) a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
FDR Conference
17. The parties shall otherwise comply with any other necessary order, direction or request made by the Registrar to facilitate the FDR Conference.
18. The Registrar may vacate the FDR Conference in the event:
(a) of non-attendance by either party at Part 1 of the Conference; or
(b) that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
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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