Hirsch and Hirsch - [2019] FCCA 48

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIRSCH & HIRSCH

[2019] FCCA 48

Catchwords:
FAMILY LAW – Parenting and property dispute – mother being primary carer – whether family report writer’s recommendation for 9/5 regime should be adopted – 9/5 impractical given distance between parties homes – 10/4 regime to be introduced over time –short 4 ½ year relationship – wife owning a property at the commencement of relationship – wife’s contributions and future needs both substantially greater than husband’s – 75/25% division of property and agreed equalisation of superannuation.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC

Cases cited:

Goode v Goode [2006] FamCA 1346

Stanford v Stanford [2012] HCA 52
Ogilvie v Adams [1981] VR 1041

Applicant:

MR HIRSCH

Respondent:

MS HIRSCH

File Number:

DGC 57 of 2018

Judgment of:

Judge Burchardt

Hearing date:

7 November 2018

Date of Last Submission:

7 November 2018

Delivered at:

Dandenong

Delivered on:

16 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Glezakos

Solicitors for the Applicant:

Tyler Tipping & Woods

Counsel for the Respondent:

Ms McDonald

Solicitors for the Respondent:

Duffy & Simon

ORDERS

Parenting

The Husband and Wife have equal shared parental responsibility for the children:
(a)[X], born …2013; and
(b)[Y], born …2015.
(“the children”).
The children live with the Wife.
The children spend time with the Husband:
(a)From 16 February 2019, until the conclusion of the 2019 School Term 1:
(i)Each alternate weekend from 10.00am Saturday until 5.00pm Sunday.
(b)From commencement of the 2019 school Term 2 and thereafter:
(i)Each alternate weekend from conclusion of school (or 3.00 pm if not a school day) each Friday until commencement of school (or 9.00 am if not a school day) Monday.
(c)From the commencement of the 2019 school Term 3 and thereafter:
(i)Each alternate week from conclusion of school on Thursday (or 3.00 pm if not a school day) until commencement of school (or 9.00 am if not a school day) on Monday.
(d)From the 2019 school Term 1 holidays and thereafter for one half of each school holiday period including long term summer vacations as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;
(e)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;
(f)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;
(g)From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;
(h)From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;
(i)On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day; and
(j)As may otherwise be agreed between the parties.
Any period the children are to spend with the Husband be suspended as follows:
(a)From the 2019 school Term 1 holidays and thereafter for one half of each school holiday period including long term summer vacations as agreed between 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 Hirsch and Hirsch

Details

AGLC: Hirsch and Hirsch [2019] FCCA 48
Case: [2019] FCCA 48
Decision Date: 16 January 2019

CaseChat Overview and Summary

This matter concerned parenting and property disputes between the Husband and Wife, heard by Judge Burchardt. The primary dispute revolved around the arrangements for the parties' two children, born in 2013 and 2015, and the division of their assets.

The court was required to determine the terms of equal shared parental responsibility, the living arrangements for the children, and the specific time the children would spend with each parent. Additionally, the court had to address the division of property, including a cash payment, the sale of real property, and the distribution of superannuation entitlements.

The court ordered that the Husband and Wife have equal shared parental responsibility for the children, with the children to live with the Wife. Specific, detailed arrangements were set out for the children's time with the Husband, including alternating weekends, school holidays, and public holidays, with provisions for changeovers and communication. In relation to property, the Wife was ordered to pay the Husband $61,500. If this payment was not made within 30 days, the parties were to sell their jointly owned real property, with the proceeds to be applied first to sale costs, then to discharge any mortgage, followed by the $61,500 payment to the Husband, and the balance to the Wife. Pending sale, the Wife was granted sole occupation of the property and responsible for mortgage instalments and outgoings. The Husband was permitted to collect specific personal items from the property. Furthermore, a superannuation split was ordered, transferring $32,350 from the Husband's superannuation to the Wife. The orders also stipulated that each party would otherwise retain their existing property and be solely responsible for their respective liabilities, with joint tenancies severed. The parties were also restrained from denigrating each other in the presence of the children.

Orders

Orders of the court

Parenting

The Husband and Wife have equal shared parental responsibility for the children:

(a) [X], born …2013; and

(b) [Y], born …2015.

(“the children”).

The children live with the Wife.

The children spend time with the Husband:

(a) From 16 February 2019, until the conclusion of the 2019 School Term 1:

(i) Each alternate weekend from 10.00am Saturday until 5.00pm Sunday.

(b) From commencement of the 2019 school Term 2 and thereafter:

(i) Each alternate weekend from conclusion of school (or 3.00 pm if not a school day) each Friday until commencement of school (or 9.00 am if not a school day) Monday.

(i) Each alternate week from conclusion of school on Thursday (or 3.00 pm if not a school day) until commencement of school (or 9.00 am if not a school day) on Monday.

(d) From the 2019 school Term 1 holidays and thereafter for one half of each school holiday period including long term summer vacations as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;

(e) From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;

(f) From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;

(g) From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;

(h) From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;

(i) On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day; and

(j) As may otherwise be agreed between the parties.

Any period the children are to spend with the Husband be suspended as follows:

(a) From the 2019 school Term 1 holidays and thereafter for one half of each school holiday period including long term summer vacations as agreed between the parties, and in default of agreement for the second half of such school holiday period in even numbered years and the first half in odd numbered years;

(b) From 4.00pm on Christmas Eve until 2.00pm Christmas Day in odd numbered years;

(d) From 2.00pm on New Year’s Eve until 2.00pm New Year’s Day in odd numbered years;

(e) From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in even numbered years;

(f) On the weekend of Mother’s Day, from 10.00am on Saturday until 5.00pm on Mother’s Day; and

(g) As may otherwise be agreed between the parties.

Changeovers occur at the children’s school where possible, and otherwise at the Suburb A Police Station, or such other location as may be agreed between the parties in writing from time to time.

Each of the Husband and Wife be at liberty to communicate with the children at reasonable times and by reasonable means (including by FaceTime, etc.) when the children are in the other party’s care, including, but not limited to, between 7.00pm and 7.30pm each Tuesday and Thursday night.

The parties each be, and is hereby, authorised to obtain, directly from any school attended by the children, or either of them, details of the children’s progress at school; copies of all school reports; photographs; notices of parent-teacher interviews; and notices of other functions which parents normally attend.

Both parties be permitted to attend parent/teacher interviews and other school activities/functions normally attended by the parents.

Neither party enrol the children, or either of them, in any extra-curricular or sporting activity which is to occur during the time the children spend with the other parent, save with the consent of such parent.

10.

Each of the parties keep the other informed of any illness or injury occurring to the children, or either of them, whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the child attending upon a medical practitioner.

11.

Each of the parties provide the other with their contact address and telephone number during periods when the children are in their care and inform the other forthwith of any change in such address or telephone number.

12.

The parties, by themselves, their servants and/or agents be and are hereby restrained by injunction from:

(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other party, their partner or their family; and

(b) Discuss these proceedings,

To or in the presence or hearing of the children or either of them and from permitting any other person to do so.

Property

13.

The Wife pay to the Husband the sum of $61,500 (the cash payment”) within 30 days.

14.

In default of compliance with order 13, the parties do all such acts and things, and sign all documents necessary to forthwith affect the sale of the real property situate at and known as Property B (“the real property”) altogether out of Court (“the sale”) and the proceeds of the sale be applied;

(a) Firstly, to pay all costs, commissions and expenses of the sale;

(b) Secondly, to discharge the mortgage and any other encumbrance affecting the real property;

15.

Pending the completion of the sale:

(a) The Wife have the sole right to occupy the real property and that during such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

(b) The parties hold their respective interests in the real property upon trust pursuant to these Orders;

16.

Liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the sale.

17.

The Husband be permitted to attend at the real property within 28 days of the making of Orders to remove and retain the following items:

(a) His Mountain Bike and any associated equipment;

(b) His scuba diving gear and any associated equipment;

18.

Pursuant to section 90MT(1)(a) of the Family Law Act 1975 there be a superannuation split in respect of the Husband’s interest in Super Fund 1 in favour of the Wife in a base amount of $32,350.00.

19.

Each party otherwise be entitled to return all superannuation entitlements current in their respective names or held on their behalf.

20.

Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the Wife;

(b) Monies standing to the credit of the parties in any joint bank account are to become the property of the Wife;

(d) Insurance policies remain the sole property of the beneficiary named therein;

(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

Procedural

21.

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligation these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

22.

All extant Applications be otherwise dismissed.

23.

Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

THE COURT NOTES THAT:

A. Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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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