Hamill & Hamill - [2007] FamCA 1736

FAMILY COURT OF AUSTRALIA

HAMILL & HAMILL

[2007] FamCA 1736

FAMILY LAW – CHILDREN – Mother’s proposed relocation – Children’s best interests – Evaluation of proposals – Meaningful relationships with young children – Order for graduated increase in time spent with father

FAMILY LAW – PROPERTY – Assessment of financial and parenting contributions – Add-backs – Splitting of superannuation

Family Law Act 1975 (Cth)

Chorn & Hopkins (2004) FLC 93-204
Coghlan & Coghlan (2005) FLC 93-220
Pierce & Pierce (1999) FLC 92-844
Taylor & Barker (2007) 37 FamLR 461
Townsend v Townsend (1995) FLC 92-569
West & Green (1993) FLC 92-395

APPLICANT:

Mr Hamill

RESPONDENT:

Ms Hamill

FILE NUMBER:

CAF

495

2006

DATE DELIVERED:

5 December 2007

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

26, 27, 29, 30 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Nash

SOLICITOR FOR THE APPLICANT:

Mr Cameron

COUNSEL FOR THE RESPONDENT:

Mr Brzostowski

SOLICITOR FOR THE RESPONDENT:

Ms Clifford

Orders

The parties equally share parental responsibility of the children namely, E born … July 2004 and L born … June 2006.
The mother be restrained from relocating the children’s residence from outside of the Australian Capital Territory/Canberra without the prior written consent of the father.
The children live with the mother.
E spend time with the father until 1 July 2010 as follows:
(a) From 3:30pm Wednesday to 5:30pm Thursday each week
(b) From 9:30am Saturday to 5:30pm Sunday each alternate weekend
L spend time with the father until 1 July 2008 as follows:
(a)       From 3:30pm to 5:30pm each Wednesday and Thursday
(b)       From 9:30am to 11:30am each alternate Saturday
(c)       From 3:30pm to 5:30pm each alternate Sunday
coinciding with the time that E spends with her father.
As of 1 July 2008 L spend time with her father as follows:
(a)       From 9:30am to 5:30pm each Thursday
(b)       From 9:30am to 5:30pm each alternate Saturday
(c)       From 9:30am to 5:30pm each alternate Sunday
coinciding with the time that E spends with her father.
As of 1 July 2009 L spend time with her father as follows:
(a) From 3:30pm Wednesday to 5:30pm Thursday each week
(b) From 9:30am Saturday to 5:30pm Sunday each alternate weekend
coinciding with the time that E spends with her father.
As of 1 July 2010 the children live with their father as follows:
(a)       From 9:30am Monday to 9:30am Wednesday each alternate week
(b)       From 9:30am Friday to 9:30am Wednesday in the next week
(c)       For one half of each of the Australian Capital Territory school holiday periods as may be agreed between the parties.
Both parties forthwith make arrangements to enrol into the ARCK Program at the Child and Family Centre and that both parties be required to complete such program at the direction of the Child and Family Centre.

PROPERTY

There be a division of property interests, including assets, liabilities and financial resources (excluding superannuation) in the proportions of 55% to the wife and 45% to the husband.
The…

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 Hamill & Hamill

Details

AGLC: Hamill & Hamill [2007] FamCA 1736
Case: [2007] FamCA 1736
Decision Date: 5 December 2007

CaseChat Overview and Summary

The case of *Hamill & Hamill* concerned a dispute between a mother and father regarding their children's living arrangements and the division of their property. The court was required to determine the best interests of the children, specifically in relation to the mother's proposed relocation, and to assess the financial and parenting contributions of each party for the purposes of property settlement, including the treatment of superannuation.

The court's primary focus in relation to the children was to ensure their best interests were met, particularly by maintaining meaningful relationships with both parents. This involved evaluating the proposals put forward by each parent and making orders that facilitated a graduated increase in the children's time spent with the father. In terms of property, the court considered various contributions made by the parties, both during the relationship and post-separation, and addressed specific issues such as "add-backs" of certain funds and the division of superannuation interests.

The court ordered that parental responsibility be shared equally. The mother was restrained from relocating the children outside the Australian Capital Territory without the father's consent, and the children were to live with the mother. However, the orders included a phased increase in the time the children would spend with the father, culminating in the children living with the father from July 2010. Regarding property, the court ordered a division of assets, excluding superannuation, with the wife receiving 55% and the husband 45%. Specific arrangements were made for the sale of a property in Queensland, the transfer of vehicles, and the discharge of mortgages. The wife's application for spousal maintenance was dismissed. The court also made specific orders for the division of the husband's superannuation benefits.

Orders

Orders of the court

The parties equally share parental responsibility of the children namely, E born … July 2004 and L born … June 2006.

The mother be restrained from relocating the children’s residence from outside of the Australian Capital Territory/Canberra without the prior written consent of the father.

The children live with the mother.

E spend time with the father until 1 July 2010 as follows:

(a) From 3:30pm Wednesday to 5:30pm Thursday each week

(b) From 9:30am Saturday to 5:30pm Sunday each alternate weekend

L spend time with the father until 1 July 2008 as follows:

(a) From 3:30pm to 5:30pm each Wednesday and Thursday

(b) From 9:30am to 11:30am each alternate Saturday

coinciding with the time that E spends with her father.

As of 1 July 2008 L spend time with her father as follows:

(a) From 9:30am to 5:30pm each Thursday

(b) From 9:30am to 5:30pm each alternate Saturday

coinciding with the time that E spends with her father.

As of 1 July 2009 L spend time with her father as follows:

(a) From 3:30pm Wednesday to 5:30pm Thursday each week

(b) From 9:30am Saturday to 5:30pm Sunday each alternate weekend

coinciding with the time that E spends with her father.

As of 1 July 2010 the children live with their father as follows:

(a) From 9:30am Monday to 9:30am Wednesday each alternate week

(b) From 9:30am Friday to 9:30am Wednesday in the next week

(c) For one half of each of the Australian Capital Territory school holiday periods as may be agreed between the parties.

Both parties forthwith make arrangements to enrol into the ARCK Program at the Child and Family Centre and that both parties be required to complete such program at the direction of the Child and Family Centre.

PROPERTY

10.

There be a division of property interests, including assets, liabilities and financial resources (excluding superannuation) in the proportions of 55% to the wife and 45% to the husband.

11.

The parties forthwith do all things and sign all documents to offer for sale the property at … W in the State of Queensland (“the [W] property”) according to the following arrangements:

(a) For the first six weeks:

(i) By an agreed agent (or failing agreement by an agent nominated by the President of the Real Estate Institute of Queensland or equivalent body)

(ii) At an agreed price, or failing agreement at a price recommended by the agent above the valuation price of $675,000.

(b) If a contract has not issued after six weeks:

(i) By auction with an agreed agent

(ii) At a reserve price as agreed of failing agreement as recommended by the agent.

(i) Payment out of all costs, commissions and fees associated with the sale

(ii) Adjustment of rates and statutory outgoings

(iii) Payment out of the joint ING loan account number …6 (referred to by the parties as “the [W] mortgage”)

(iv) Reimbursement to the party or source from which the funds were paid of the upfront costs, including auction costs, required prior to the sale; and

(v) The balance to be held in trust pending final distribution of property pursuant to Order 10 of these orders

(vi) Before the balance held in trust is distributed to the parties the parties determine an amount, if necessary with the assistance of an agreed accountant, to cover estimated total capital gains tax liabilities accruing from ownership of the W property in respect of both parties, such amount to be retained in trust and paid to discharge such capital gains tax liabilities at the appropriate time, with any balance to be paid equally to the parties.

12.

The husband transfer to the wife all his right title and interest in the Subaru Impreza motor vehicle.

13.

Prior to or simultaneously with the transfer in Order 11:

(a) The wife transfer to the husband all her right title and interest in the property at … G in the state of Queensland (“the [G] property”)

(b) The husband release the wife from all liability with respect to the existing ING loan secured by way of mortgage over the G property, or otherwise if necessary payment and discharge that loan and mortgage in order to remove the liability of the wife

(c) The wife transfer to the husband all her right title and interest in the property at … H in the state of Queensland (“the [H] property”)

(d) The husband release the wife from all liability with respect to the existing ING loan secured by way of mortgage over the H property.

14.

The husband retain to the exclusion of the wife the whole of his interest in shares held in his sole name or jointly with other persons.

15.

For the purposes of calculating the wife’s 55% share, as referred to in Order 10, the property pool will include the sum of $22,400 previously redrawn from the ING mortgage account for the wife’s costs and the value of the car transferred to her at $16,000.00.

16.

For the purposes of calculating the wife’s share, as referred to in Order 10, to the extent that it is necessary the husband and the wife shall cause a cash payment to the wife sufficient to ensure that her share equates to 55%.

17.

In accordance with s 90MT(1)(b) of the Family Law Act 1975 whenever a splittable payment within the meaning of s 90ME of the Act becomes payable to or on behalf of the husband from his interest in the Military Superannuation benefits Scheme (MSBS), the wife is entitled to be paid (by the Trustee of MSBS) 15% of the splittable payment and there shall be a corresponding reduction in the amount the husband would be entitled to receive but for these orders.

18.

The operative time for Order 17 is four business days after the service of these orders on the Trustee.

19.

Unless otherwise specified in these orders each party retain as against the other all items of property in their possession or control as at the date of these orders and each party indemnify the other against all liabilities in the name of that party and all liabilities encumbering any item of property to which that party is entitled pursuant to these orders.

20.

The wife’s application for spousal maintenance is dismissed.

21.

All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

22.

Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

23.

The matter be removed from the Pending Cases Inventory.

Background

Background to the litigation

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Evidence

Evidence Before The Court

However, in a slightly different category is the reference in the mother's single balance sheet of a sum of $2,524 asserted to have been cash withdrawn from the ING account on 28 November 2007. I can find no evidence about that withdrawal in the material at all; not in the wife's affidavit, not in the husband's affidavit, not in any of the exhibits before me or anything else. The material I have about the account unhelpfully falls off just at the relevant moment. I am not prepared to make a finding that it should be an add-back for lack of evidence, to begin with, but also, because of the small size of the amount. Those then I think deal with all of the matters that were raised by the parties as requiring a determination by me. They produce a net pool of property of the parties, apart from the superannuation, of $774,104, less the $26,426, which I think gives us a total pool of $747,678. The non-super pool in total was $1,424,565, to which should be added, as I suggested, the $22,400 in costs for the mother, $22,249 of tax refunds of the husband added back in and the $5,500 constituting the husband's bank account; a total then of $1,474,714, less liabilities of $700,610, which incorporates the amount of the losses in the property, leading to a figure of $774,105 [$774,104]. The total pool including the superannuation would therefore be $1,086,258. I have in conformity with the principles enunciated in Coghlan & Coghlan[4] separated the two pools of property at this point and it is logical and it should be so if for no other reason that each of the parties has sought orders that separately deal with the two pools of property. The husband, somewhat anomalously in the context, seeks that the wife receive 15 per cent of his superannuation as a splittable payment. The wife seeks that she receive 10 per cent. The explanation for this apparently reversed order of batting is that the wife seeks a higher proportion of the property pool and presumably seeks, therefore, that there should be some overall adjustment on the superannuation pool in justice and equity as a consequence. However, for reasons that I will now articulate I do not believe either of those approaches is exactly right. [4] (2005) FLC 93-220 The contributions made by the parties fall into three categories. The first is the contributions made initially by each of them; second, the contributions made during the course of the time they were together. This depends a little on what date I choose as being the date on which the parties began their cohabitation. And finally, the contributions made by each of them following separation, including in the case of each of them, though principally in the case of the mother, her continuing contributions as homemaker, and particularly as parent since separation. The contributions at the time the parties came together would include in the case of superannuation the potential for different results, depending upon the day on which the parties or the time at which the parties were thought to have come together. I was presented with exhibit F3, the valuations of Mr R for 31 October 1998, which is one possible date, at some $38,171 with a valuation for 31 December 1999, which was close to another of the dates selected in the sum of $67,630 and the present valuation of $273,369.06, which is the figure that we have been using.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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