FAMILY COURT OF AUSTRALIA
| GOLDMAN & GOLDMAN (NO 2) | [2017] FamCA 531 |
| FAMILY LAW – CHILDREN – With whom a child lives – Where the children have an attenuated relationship with their father and a close dependent relationship with their mother – Where there is a need to protect the children from psychological harm arising from exposure to emotional abuse – Where the youngest child has been manipulated into coming to the conclusion that a complaint of sexual abuse should be made against the father – Concluded no weight can be given to the wishes of the children – Where the mother has a limited capacity to meet the children’s needs and to understand the impact of her conduct on their wellbeing – Where the evidence strongly supports the children will continue to refuse any supervised contact arrangements with their father – Concluded the father is a good enough parent to meet the children’s educational, financial, intellectual and emotional needs – Ordered the children live with the father and initially spend no time with the mother for a period of four weeks. FAMILY LAW – PROPERTY SETTLEMENT – Where both parties worked to capacity during the relationship – Where the father through his paid employment and the wife by the care of the children have contributed equally to their assets – Where the wife has had primary care of the children post-separation – Concluded contributions after separation warrant a five per cent adjustment in favour of the wife – Where the children will be in the primary care of the husband upon making of orders and the wife will not be in a position to pay child support – Where the wife borrowed from her parents to meet legal fees and the husband met costs from his late mother’s estate – Ordered distribution of 57.5/42.5 per cent in favour of the husband |
| Family Law Act 1975 (Cth), ss 60CC, 64B, 75, 79 |
| Bevan & Bevan [2013] FamCAFC 116 Bondelmonte v Bondelmonte (2017) HCA 8 Stanford & Stanford (2012) 247 CLR 108 |
| APPLICANT: | Mr Goldman |
| RESPONDENT: | Ms Goldman |
| INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
| FILE NUMBER: | SYC | 3001 | of | 2015 |
| DATE DELIVERED: | 23 June 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 27 February – 3 March 2017 and 10 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Humphreys Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Wearne, Advocate |
| SOLICITOR FOR THE RESPONDENT: | Reid Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Guterres |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
Orders
Parenting
That all prior parenting orders in relation to B born … 2005 and C born … 2007 (“the children”) are discharged.
Parental responsibility
That the father shall have sole parental responsibility in relation to the care, welfare and development of the children.
The father shall keep the mother advised in writing (which includes email and SMS texts) of decisions taken by him in relation to the long…
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- Case
- [2017] FamCA 531
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children, specifically whether their wishes should be given weight given their alleged manipulation and the attenuated relationship with their father. It also needed to assess the capacity of each parent to meet the children's needs and understand the impact of their conduct on the children's wellbeing. In relation to property, the court had to determine the extent of each party's contributions to the acquisition of assets, both during the relationship and post-separation, and how these contributions should be reflected in the final property division.
Cleary J concluded that no weight could be given to the children's wishes due to manipulation and the need to protect them from psychological harm. The court found the father to be a "good enough" parent capable of meeting the children's educational, financial, intellectual, and emotional needs, while noting the mother's limited capacity and the strong likelihood of the children refusing supervised contact. In the property settlement, the court found equal contributions during the relationship but adjusted the division by five per cent in favour of the wife for post-separation contributions, considering the father would have primary care of the children.
The court ordered that the children live with the father and initially have no time with the mother for a period of four weeks, with a phased introduction of supervised contact thereafter. In the property settlement, the court ordered the transfer of a property to the mother, with a significant payment to the father, or alternatively, a sale of the property with proceeds distributed in a specific ratio, reflecting a 57.5/42.5 per cent division in favour of the husband.
Orders
Orders of the court
Parenting
1.
That all prior parenting orders in relation to B born … 2005 and C born … 2007 (“the children”) are discharged.
Parental responsibility
2.
That the father shall have sole parental responsibility in relation to the care, welfare and development of the children.
3.
The father shall keep the mother advised in writing (which includes email and SMS texts) of decisions taken by him in relation to the long term welfare of the children including but not limited to change of enrolment at school, referral for specialist medical advice, therapists engaged for the children and religious instruction.
4.
That the father shall provide to the mother; copies of all school reports, and application forms to purchase school photographs within 14 days of them being made available to the father.
5.
That the father be restrained from doing anything before 2018 to change the enrolment of the children at the D School (other than for progression to high school) without prior consultation with the children’s therapist and the principal of the school.
6.
That from the commencement of unsupervised time pursuant to Order 12(c) herein, the mother may, subject to any direction otherwise by the principal of the children’s school, attend those events at school to which parents are invited.
Therapy for the children
7.
That upon the making of these orders, the father shall make an appointment at the earliest available time for the children to attend upon a clinical psychologist (“the therapist”) for the purpose of therapeutic counselling and the children shall continue to attend on such therapist for such period of time as recommended by that therapist NOTING that the Single Expert child and family psychiatrist has recommended Dr E clinical psychologist of F Group as a suitable therapist.
8.
Each of the parents shall co-operate with all reasonable requests made by the therapist, (if any are made), for the involvement of that party, by provision of information and in any other way.
9.
The father shall provide the following documents to the therapist:
(a) These orders and reasons for judgment;
(b) Reports of Dr G dated 20 September 2016 and 8 February 2017; and
(c) Child Dispute Conference Memorandum dated 2 November 2015.
Residence
10.
That the children shall live with the father commencing forthwith NOTING that the father may choose to have the children live at first with Ms H (“the paternal aunt”) for a period determined by the father in consultation with the paternal aunt.
11.
That the father is restrained from establishing a permanent residence for the children outside the Commonwealth of Australia.
Time with mother
12.
That the mother spend time with the children, commencing not before four weeks have elapsed after the date of these orders, as follows:
(a) At a supervised contact centre:
(i) For up to two (2) hours on the third Sunday of each month for three (3) months; and thereafter
(ii) For up to two (2) hours on the first and third Sunday of each month for a period of three (3) months; and thereafter
(b) With a supervisor, either agreed to, or appointed by, the father from 10.00 am to 4.00 pm on the first and third Sundays of each month for a period of six months; and thereafter
(c) Unsupervised from 9.00 am to 5.00 pm on the first and third Sundays of each month; with changeovers to be at a supervised contact centre unless otherwise agreed; and
(d) At such other and or additional times, if any, agreed between the parties.
13.
Orders for time spent with the mother shall be suspended for four weeks during the Christmas school holiday period each alternate year (commencing 2018/2019 holiday period) with the father to advise the mother in writing of the proposed suspended period, three months in advance.
Overseas travel
14.
That for a period of twelve months from the date of these orders the father shall be restrained from removing the children from the Commonwealth of Australia.
15.
Subject to Order 14 the father may travel overseas with the children provided that he advises the mother in writing of:
(a) The date of departure and return;
(b) The countries to be visited;
(c) Contact details for the father during the period of travel.
Restraints
16.
That the mother is restrained from contacting the children and spending time with them, at home, at school and in any other place and by any other method other than in accordance with these orders.
17.
That each of the parties shall refrain from making critical or derogatory remarks about the other or members of their family in the presence or within the hearing of the children, or either of them, and that the parties shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other or members of their family in the presence or within the hearing of the children, or either of them.
18.
That each of the parties be restrained by injunction from discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings, with or in the presence or hearing of the children, or either of them, and from permitting any other person to do so.
19.
That the parties be restrained from having the children attend upon Ms J for counselling other than for one formal farewell session at the sole discretion of the father.
Independent Children’s Lawyer
20.
The appointment of the Independent Children’s Lawyer (“ICL”) is extended for a period of three (3) months from the date of these orders.
21.
The ICL shall provide to the principal of the school/s which the children attend (presently D School) a copy of these orders.
22.
The ICL shall provide to JIRT a copy these orders and reasons for judgment.
Property
23.
That within 42 days of the date of these orders the father transfer to the mother all his right, title and interest in the property situate at K Street, Suburb L (“the Suburb L property”).
24.
Simultaneously with transfer pursuant to Order 23 the mother pay to the father the sum of $275,230.
25.
That the mother must refinance the debt secured on the Suburb L property and must indemnify the father against any liability for outgoings in respect of the property referred to in Order 23 above and any liability in respect of any mortgage or charge thereon.
26.
In the event that the mother has not complied with Order 24 above within the stated time then the parties must do all acts and execute all documents necessary to sell the Suburb L property by public auction, to be held on or before 120 days from the date of these orders.
27.
The reserve price is $900,000 or such other price as the parties agree.
28.
The parties must do all acts and execute all documents to cause the proceeds of sale of the property be used as follows:
(a) To pay the reasonable expenses of the sale including agent’s commission, legal costs and disbursements;
(b) To discharge the mortgages secured on the property to FF Bank home loans …00 and …01;
(c) To pay rate adjustments other than those amounts otherwise payable by one of the parties pursuant to these orders;
(d) To pay 45.75 per cent of the balance to the father and 54.25 per cent to the mother.
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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