FAMILY COURT OF AUSTRALIA
| HASHIM & HASHIM | [2012] FamCA 135 |
| FAMILY LAW – PROPERTY – Where both parties give unreliable evidence – Where there are large amounts of conflicting evidence – Notional add backs – Where valuation evidence problematic – Where court unable to determine the value of the former matrimonial home – Value to be determined through its sale – Assessment of contributions – Where father’s initial financial contributions greater – Where mother’s financial contributions and contributions as homemaker during the marriage exceeded those of the father – Where parties’ families advanced funds – Where mother has had primary responsibility for the children’s care – Assessment of s 75(2) of the Family Law Act 1975 (Cth) factors – Where there is a disparity in earning capacity in favour of the mother – Where the mother will continue to have primary responsibility for the care of the children – Where the mother’s assets constitute a proportionately significant sum in superannuation – Where the father pays little child support – 66/34 per cent split in favour of the mother considered just and equitable. FAMILY LAW – CHILDREN – Parenting Orders – Best interests of the children – Where parental relationship is hostile – Where it is agreed that the children will reside primarily with the mother and that the mother have sole parental responsibility – Allegations of family violence and aggressive behaviour perpetrated by the father – Where father is receiving professional assistance in relation to anger management – Where children have a good relationship with both parties – Ordered that the time spent with the father to incrementally increase. |
| Evidence Act 1995 (Cth) s 140 Family Law Act1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65AA, 69ZT(3), 75(2), 79 |
| Bell and Bell [2000] FamCA 1301 Cerini [1998] FamCA 143 Farmer & Bramley (2000) FLC 93-060 Goode & Goode (2006) FLC 93-286 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626 Jones v Dunkel (1959) 101 CLR 298 Maluka and Maluka (2011) FLC 93-464 Marker [1998] FamCA 42 Pierce & Pierce (1999) FLC 92-844 Russell v Russell (1999) FLC 92-877 Townsend (1995) FLC 92-569 |
| APPLICANT: | Mr Hashim |
| RESPONDENT: | Ms Hashim |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 3459 | of | 2010 |
| DATE DELIVERED: | 19 March 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 1-5 August 2011, 23 & 24 January 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Stenmark SC |
| SOLICITOR FOR THE APPLICANT: | Gergis Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | John R Quinn & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Alexandra Wearne |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting
That all prior parenting orders in relation to the children, H Hashim born … December 2003 (“H”) and A Hashim born … March 2007 (“A”) (“the children”) are discharged.
That Ms Hashim…
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- AGLC
- HASHIM & HASHIM [2012] FamCA 135
- Case
- [2012] FamCA 135
- Decision Date
CaseChat Overview and Summary
The court was required to determine the division of the parties' property, including the valuation and sale of their former matrimonial home, and to make parenting orders that best served the interests of the children, H and A. Key issues included assessing the parties' financial and non-financial contributions to the marriage, considering the s 75(2) factors of the *Family Law Act 1975* (Cth) for property adjustment, and establishing a parenting regime that acknowledged the children's relationship with both parents while addressing the father's anger management issues and the mother's primary caregiving role.
In relation to property, the court found both parties' evidence unreliable and the valuation evidence problematic, necessitating the sale of the former matrimonial home to determine its value. The court assessed contributions, noting the father's initial financial advantage but finding the mother's subsequent financial and homemaker contributions, along with her primary responsibility for the children, to be greater. Considering the s 75(2) factors, including the disparity in earning capacity favouring the mother, her continued primary responsibility for the children, and her significant superannuation assets, the court ordered a 66/34 per cent split of the net property pool in favour of the mother. For parenting, the court discharged prior orders and granted the mother sole parental responsibility, with the children to live with her. Time spent with the father was ordered to incrementally increase, contingent upon his continued engagement in anger management and behavioural change therapy, with specific conditions and reporting requirements to be met before a more substantial increase in time could be implemented. The court also made orders regarding the sale of the property, including provisions for its sale by public auction, potential purchase by either party, and the distribution of proceeds, with the mother to pay all outgoings and receive exclusive occupation pending sale.
Orders
Orders of the court
Parenting
1.
That all prior parenting orders in relation to the children, H Hashim born … December 2003 (“H”) and A Hashim born … March 2007 (“A”) (“the children”) are discharged.
2.
That Ms Hashim (“the mother”) shall have sole parental responsibility for major long term issues in relation to the children.
3.
That the children live with the mother.
4.
That the children spend time with Mr Hashim (“the father”) as follows:
(a) In accordance with orders dated 13 April 2011 as varied on 5 August 2011;
(b) Commencing from the last day of school Term 1, 2012 as follows:
(i) during term in the first week and each alternate week thereafter during school term from Saturday at 2.30 pm until the commencement of school on Monday;
(ii) during term in the second week overnight from the conclusion of school on Friday until the commencement of Saturday language School or 9.30 am Saturday whichever is the latter;
(iii) in the first weeks of the Term 1, 2 and 3 school holidays from the conclusion of school on the last day of term until 2.00 pm on the immediately following Tuesday or the day which is the fifth day from the last day of term, whichever is the shorter;
(iv) in the long summer holidays, for three non-consecutive blocks of five consecutive days and four nights, one block in December and two blocks in January. Unless the parties agree otherwise these periods will commence on 16 December, 4 January and 20 January;
(v) from 6.30 am to 11.30 am on both Big Eid and Little Eid in 2012 and each alternate year thereafter;
(vi) from 2.00 pm to 7.00 pm on both Big Eid and Little Eid in 2013 and each alternate year thereafter;
(vii) in the event Father’s Day occurs on a weekend when the children are not in the father’s care, from 10.00 am to 6.00 pm on Father’s Day;
(viii) in the event that the father’s birthday occurs on a day when the children are not in the father’s care, from after school to 6.00 pm that day if it is a school day and from 3.00 pm to 6.00 pm if it not a school day; and
(ix) at other times as agreed between the parties.
5.
That prior to any progression in the children’s time with the father from the arrangements set out in Order 4 the father shall do all acts and things necessary to:
(a) Continue to engage in an ongoing programme of anger management and behavioural change therapy with Ms T, Psychologist, or such other therapist as may be agreed between the parties (“the therapist”); and
(b) Accept all referrals and recommendations as to treatment made by the therapist; and
(c) Continue to attend for therapy for as long as and at such frequency as the therapist recommends and for no less than six (6) months (from 24 January 2012).
6.
That no sooner than the commencement of Term 3, 2012, and
(a) provided that the father has complied with all aspects of Order 5 above; and
(b) upon the father providing to the mother a report from the therapist confirming;
(i) the father’s ongoing consistent and current attendance at anger management and behavioural change therapy; and
(ii) co-operation with and progress towards the therapeutic goals of that therapy, including confirmation that the father has developed the capacity to recognise the impact of his behaviour upon others.
then the children shall spend time with the father as set out in Order 7.
7.
Subject to Orders 5 and 6, the children shall spend time with the father:
During school terms in a two week cycle:
(a) In the first week from the conclusion of school on Friday until the commencement of school the following Monday; and
(b) In the second week overnight from the conclusion of school on Friday until 9.30 am Saturday or the commencement of Saturday language School, whichever is the later.
During school holidays
(c) For the first half of each shorter school holiday periods.
(d) For one half of the long summer holidays which shall be divided into separate equal periods, being one period in December and the second period in January.
(e) From 6.30 am to 11.30 am on both Big Eid and Little Eid in 2012 and each alternate year thereafter.
(f) From 2.00 pm to 7.00 pm on both Big Eid and Little Eid in 2013 and each alternate year thereafter.
(g) In the event Father’s Day occurs on weekend when the children are not in the father’s care, from 10.00 am to 6.00 pm on Father’s Day.
(h) In the event that the father’s birthday occurs on a day when the children are not in the father’s care, from after school to 6.00 pm that day if it is a school day and from 3.00 pm to 6.00 pm if it not a school day.
(i) At other times as agreed between the parties.
8.
Commencing end of Term 1 2014, for one half of all short school holiday periods, such times to be agreed between the parents and if no agreement for the first half of the school holiday period, to commence from the conclusion of school term and to conclude at 5.00 pm on the day which falls mid-way through the holidays.
9.
Notwithstanding any other order, in the event Mother’s Day occurs on a weekend when the children are in the father’s care, the father’s time with the children is suspended from 10.00 am on Mother’s Day.
10.
That for the purpose of the father spending time with the children during school term time, the father will collect the children from school and return the children to school.
11.
That save for occasions when these orders require that changeover occur at school, the changeovers will take place at McDonalds at B and shall commence and conclude at 10.00 am, unless otherwise specified or agreed between the parties in writing.
12.
That for the purpose of Orders 4(b)(iv) and 7(d) herein:
(a) The father shall nominate his proposed summer school holiday times with the children in writing to the mother no less than three (3) months prior to the commencement of the first day of the summer school holidays; and
(b) In the event that the father does not comply with Order 12(a) above within the time frame stipulated; the mother shall no less than two (2) months prior to the commencement of the first day of the summer school holidays nominate the father’s school holiday times with the children.
13.
The children’s term time contact with the father is suspended during school holidays and shall resume as follows:
(a) Where the children have spent the first week or first half of the school holidays with the father, then the first week of the children’s cycle of time will occur in the first week of term.
(b) Where the children have spent the last week or second half of the mid-term school holidays with the father, then the first week of the children’s cycle of time will occur in the second week of term.
14.
The father shall ensure that the children and each of them continue their attendance at language school on Saturdays when they are in his care and other extra curricular activities.
15.
The parties are hereby restrained from denigrating the other party in the presence and/or hearing of the children.
16.
That the cost of therapy in Order 5 be met by the father.
17.
That the ICL has leave to forward to the therapist copies of:
(a) The Court’s reasons for judgment; and
(b) The Court’s final orders.
18.
That the appointment of the ICL continues for a period of 9 months.
19.
Except in the event of an emergency, that the mother shall prior to implementing a decision about the children’s education and health:
(a) Attempt to contact the father; and
(b) Attempt to ascertain his views in relation to the decision; and
(c) Give his views proper consideration.
20.
That the father has such parental responsibility as is necessary for any health or educational professional or institution dealing with the children, including but not limited to doctors and schools, to:
(a) Obtain necessary medical treatment when the children are spending time with him; and
(b) Obtain any information about the children to which a parent is normally entitled, including but not limited to medical reports, school reports and school photographs.
21.
The mother shall ensure that the father has up to date details, including name, contact telephone number and address, of:
(a) Each medical practitioner (including allied health professionals) who provides treatment to the children or either of them.
(b) Information about medical treatment required by the children.
(c) Information about any extra-curricular learning activities, including tutoring, obtained by the children.
22.
Neither party shall arrange any extra-curricular sporting or social activities for the children which require the children’s attendance in the other parent’s time, without first obtaining the written consent of the other parent.
23.
In the event that the father is required to obtain medical treatment for either or both of the children when they are spending time with him, he shall inform the mother as soon as practicable including the name and practice address of the treating doctor and any recommendations for treatment.
24.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
25.
That the father and mother forthwith do all acts and things necessary and sign all documents, deeds, instruments and writings necessary to put the property known as S property (“the property”) to sale by public auction within four (4) months or such other period as they agree.
26.
With respect to the sale of the property by public auction the parties shall do all acts and things to give effect to Order 25 including but not limited to:
(a) Place the property with an estate agent in the area (hereinafter called “the real estate agent or the auctioneer”) for the sale of the property at the earliest possible date. If the parties are unable to agree on the appointment of a real estate agent to conduct the sale, then an agent nominated by the President of the Australian Property Institute of New South Wales will be appointed.
(b) Execute all documents requested by the real estate agent or the auctioneer for the sale of the property.
(c) Agree to a reserve price at least one (1) month prior to the auction date and in the event that the parties cannot agree on the reserve price the parties shall do all acts and things to agree to appoint a valuer to nominate the reserve price and in the event of the parties failing to agree on a joint valuer for this purpose the parties shall forthwith do all acts and things to request the President of the Australian Property Institute or his or her nominee to appoint a licensed valuer for this purpose.
(d) Pay equally to the real estate agent or the auctioneer a reasonable sum for advertising expenses in relation to the sale.
(e) Give such instructions as are necessary to John R. Quinn & Co., Lawyers or other legal representative appointed by the wife for the preparation of a contract for sale in conjunction with Gergis & Co, Solicitors and for the contract for sale to be made available to the real estate agent or the auctioneer and to carry out the conveyance of the sale of the property and to apply the net proceeds in accordance with these orders.
(f) Attend at the auction sale of the property and negotiate with the highest bidder in the event that the reserve price is not reached.
(g) The mother has the right to bid at the auction. The father is restrained from bidding at the auction or appointing any agent, representative or nominee to bid on his behalf to acquire a legal or beneficial interest in the property.
(h) Execute the contract for sale.
(i) Co-operate in every way with the real estate agent or the auctioneer in relation to the sale of the property including allowing inspection of the property at all reasonable times requested by the real estate agent or the auctioneer and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers.
(j) Execute all other documents necessary to complete the sale.
27.
In the event the property does not reach the reserve price and that in addition to the mother there were two or more registered bidders and the property is not sold at auction, provided within 72 hours after the auction the mother gives written notice she wishes to do so, the mother may purchase the father’s interest at a price equal to the highest bid. In this regard the mother will pay the father the amount to which he is entitled pursuant to these orders within a further six (6) weeks and provide him with either a discharge of mortgage or release from the mortgagee as well as evidence of payment to her parents of the amount due pursuant to Order 33(e). Upon payment the father shall simultaneously transfer to the mother his title and interest in the property.
28.
In the event in addition to the mother there was only one registered bidder and the property does not reach the reserve and is not sold at auction, provided within 72 hours after the auction the mother gives written notice she wishes to do so, the mother may purchase the father’s interest at a price equal to the reserve price. In this regard the mother will pay the father the amount to which he is entitled pursuant to these orders within a further six (6) weeks and provide him with either a discharge of mortgage or release from the mortgagee as well as evidence of payment to her parents of the amount due pursuant to Order 33(e). Upon payment the father shall simultaneously transfer to the mother his title and interest in the property.
29.
In the event that the mother does not give the father written notice in accordance with Orders 27 and 28 above the father may, upon giving her written notice within a further 72 hours, purchase the mother’s interest in the property at a price equal to the highest bid or reserve price (which shall be determined by reference to whether the auction resulted in the number of bidders referred to in Order 27 or Order 28. In this regard the father will pay the mother the amount to which she is entitled pursuant to these orders within a further six (6) weeks and provide her with either a discharge of mortgage or release from the mortgagee as well as evidence of payment to her parents of the amount due pursuant to Order 33(e). Upon payment the mother shall simultaneously transfer to the father her title and interest in the property.
30.
In the event that the property is not sold:
(a) at an auction pursuant to these orders; and
(b) neither party seeks to acquire the other parties interest in the property,
the father and the mother shall do all acts and things and execute all documents necessary to hold a further auction of the property within four (4) months after the date of the first auction.
31.
Pending completion of the sale of the property the mother shall have exclusive occupation of the property.
32.
Until the property is sold the mother shall pay all rates, taxes and mortgage instalments in relation to the property as and when they fall due and maintain the property in good condition.
33.
Upon the sale of the property the proceeds of sale be paid in the following manner and priority:
(a) Payment of agent’s commission and auction expenses if any due on the sale of the property,
(b) Payment of all moneys outstanding under the mortgage registered on the title of the property,
(c) Payment of legal and selling costs on the sale of the property,
(d) Water rates and council rates,
(e) Payment of $40,000.00 to the mother’s parents,
(f) 34% of the then balance to the father,
(g) Balance to the mother from which she shall pay the father $18,606.00 together with 34% of any mortgage arrears and arrears of water and council rates.
34.
All outstanding applications are dismissed.
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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