FEDERAL CIRCUIT COURT OF AUSTRALIA
Gilholme & Gilholme [2021] FCCA 1821
File number(s): SYC 4570 of 2021 Judgment of: JUDGE B SMITH Date of judgment: 23 July 2021 Catchwords: FAMILY LAW – PARENTING – 13 year old child – mental health concerns - change of school - child wants to move to school near father she now lives with – 10 minute trip to local school - 2.5 hour return trip to former school near mother – other factors: Child may change school – referral to mental health support service to be acted on forthwith
PROPERTY - interim spouse maintenance – assessment of unutilised earning capacity - COVID-19 lockdown effect on Sydney labour markets: interim spouse maintenance till March 2022 – liberty to seek further spouse maintenance post March 2022
Legislation: Family Law Act 1975 (Cth) pt VII, div 5, ss 60CA, 64B, 65AA, 65D, 72(1), 75(2), 79A Cases cited: Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FLC 93-654
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] 43 Fam LR 348
Re G: Children's Schooling [2000] FamCA 462
SS & AH [2010] FamCAFC 13Number of paragraphs: 116 Date of hearing: 13 July 2021 and 15 July 2021 Place: Sydney Counsel for the Applicant: Mr Roberts Counsel for the Respondent: Ms Spain Solicitor for the Applicant: Barkus Doolan Solicitor for the Respondent: Watkins Tapsell ORDERS
SYC 4570 of 2021 BETWEEN: MS GILHOLME
Applicant
AND: MR GILHOLME
Respondent
ORDER MADE BY:
JUDGE B SMITH
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1.The matter be listed on 7 February 2022 at 9.30am for mention.
2.The parties do all acts and things to cause the child, X born in 2008 to be enrolled in and thereafter attend B School for her entire secondary school education.
3.The parties do all acts and things and sign all documents necessary to cause the child, X born in 2008 to be referred to the Child Adult Mental Health Service (CAMHS) program at C Hospital pursuant to the referral of Ms D registered psychologist or such other referral is obtained. A copy of these orders may be provided to that Hospital or Service.
4.The Respondent (‘husband’) pay or cause to be paid by way of spousal maintenance to the Applicant (‘wife’) the sum of $750.00 per week commencing on the first Monday following the making of these Orders and each Monday thereafter and finishing with the last payment on Monday 7th March 2022. This is without prejudice to the wife to bring a further application in respect of the period from 14 March 2022.
5.Liberty is granted to the parties to approach the Court in Chambers to have the matter relisted on seven (7) days’ notice for mention if any issues arise.
6.Within 28 days, each party comply with their obligations under Part 24 of the Federal Circuit Court Rules 2001 for full and frank disclosure.
7.Any Application in a Case or Objection to Subpoena made returnable by the…
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CaseChat Overview and Summary
The court was required to determine several issues, including the educational arrangements for the child, X, born in 2008, and the referral of the child to a mental health service. Additionally, the court addressed the matter of spousal maintenance payable by the husband to the wife, and the process for valuing the husband's interests in two companies, E Pty Ltd and F Pty Ltd. The court also considered the parties' obligations regarding full and frank disclosure.
Judge B Smith made orders by consent regarding the child's education and mental health referral. The husband was ordered to pay spousal maintenance of $750.00 per week to the wife until 7 March 2022, with liberty for the wife to seek further orders thereafter, noting that the duration was influenced by the COVID-19 pandemic and its impact on the wife's earning capacity. The parties were also directed to follow a specific procedure for the appointment of a single expert to value the husband's interests in E Pty Ltd and F Pty Ltd, with the husband to bear the initial cost of the expert report. The court also mandated compliance with disclosure obligations under the Federal Circuit Court Rules 2001.
Orders
Orders of the court
SYC 4570 of 2021
BETWEEN:
MS GILHOLME
Applicant
AND:
MR GILHOLME
Respondent
ORDER MADE BY:
JUDGE B SMITH
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1. The matter be listed on 7 February 2022 at 9.30am for mention.
2. The parties do all acts and things to cause the child, X born in 2008 to be enrolled in and thereafter attend B School for her entire secondary school education.
3. The parties do all acts and things and sign all documents necessary to cause the child, X born in 2008 to be referred to the Child Adult Mental Health Service (CAMHS) program at C Hospital pursuant to the referral of Ms D registered psychologist or such other referral is obtained. A copy of these orders may be provided to that Hospital or Service.
4. The Respondent (‘husband’) pay or cause to be paid by way of spousal maintenance to the Applicant (‘wife’) the sum of $750.00 per week commencing on the first Monday following the making of these Orders and each Monday thereafter and finishing with the last payment on Monday 7th March 2022. This is without prejudice to the wife to bring a further application in respect of the period from 14 March 2022.
5. Liberty is granted to the parties to approach the Court in Chambers to have the matter relisted on seven (7) days’ notice for mention if any issues arise.
6. Within 28 days, each party comply with their obligations under Part 24 of the Federal Circuit Court Rules 2001 for full and frank disclosure.
7. Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
AND BY CONSENT THE COURT ORDERS THAT:
8. That within 14 days from the date of these Orders, the wife shall provide the husband:
a. The names of three (3) experts that she proposes as suitable to undertake a valuation of the husband’s interest in:
i. E Pty Ltd; and
ii. F Pty Ltd
9. Within 14 days of Order 8, the husband shall nominate and notify in writing to the wife of his choice of the single expert to be appointed to value the husband’s interests in:
i. E Pty Ltd; and
ii. F Pty Ltd
10. In the event the husband fails to nominate a single expert in accordance with Order 9, the wife shall be at liberty to thereafter choose one of the nominated experts to be appointed as single expert.
11. Within seven (7) days of receipt of the husband’s nomination or upon nominating an expert in accordance with these Orders, the wife shall provide to the husband a draft letter of instruction, and within seven (7) days of receipt, the husband shall either sign and return same or provide a marked-up version of any proposed changes.
12. The husband is to pay for the expert report in the first instance.
13. Liberty is granted to the parties to approach the Court in Chambers to have the matter relisted on five (5) days’ notice in the event of dispute as to the expert report.
AND THE COURT NOTES THAT:
A. It is not appropriate to put an unlimited time on the spousal maintenance given the current circumstances of COVID-19 and the associated lockdown, which impacted on the decision. By March 2022 the lockdown impacts will hopefully have finished and the wife will be in a position to establish her gainful employment / earning capacity in the open labour market.
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 Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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