FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hofte & Gilmour [2023] FedCFamC1F 919
File number(s): BRC 1692 of 2020 Judgment of: JARRETT J Date of judgment: 28 September 2023 Catchwords: FAMILY LAW – PARENTING – Where only minor differences in parties’ proposals – Where independent children’s lawyer’s proposal would see a return to previous arrangements – Orders made in terms of independent children’s lawyer’s proposal.
FAMILY LAW – PROPERTY – Where contributions are agreed – Where respondent has significantly greater earning capacity – Where respondent was unclear in his evidence – 30% adjustment made – Where applicant established a need for spousal maintenance – Respondent ordered to pay spousal maintenance.Legislation: Family Law Act 1975 (Cth) ss 62G, 75, 79, 106A Division: Division 1 First Instance Number of paragraphs: 76 Date of hearing: 26 & 27 September 2023 Place: Brisbane Counsel for the Applicant: Mr Walsh Solicitor for the Applicant: Turnbull Mylne Counsel for the Respondent: Mr Polley Solicitor for the Respondent: Beck Legal Group Counsel for the Independent Children’s Lawyer: Mr Bunning Solicitor for the Independent Children’s Lawyer: C M Bint Family Lawyers ORDERS
BRC 1692 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HOFTE
Applicant
AND: MR GILMOUR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
28 SEPTEMBER 2023
THE COURT ORDERS THAT:
The applicant and the respondent have equal shared parental responsibility for decisions concerning the major long-term issues for the children X born 2010 and Y born 2014.
The children live with the respondent for a period of four weeks from the date of this order.
During the period of four weeks that the children live with the respondent pursuant to paragraph 2, the children shall communicate with the applicant:
(a)on the Wednesday in weeks 2 and 3 by telephone between 5:30pm and 6:00pm with the applicant to initiate the call and the respondent to facilitate the call and ensure that the children have privacy during such communication; and
(b)on the Wednesday and Saturday in week 4 by telephone between 5:30pm and 6:00pm with the applicant to initiate the call and the respondent to facilitate the call and ensure that the children have privacy during such communication.
Thereafter, commencing on the Wednesday in week 5, the children live with the applicant.
Upon the commencement of paragraph 5 hereof, the children shall live with the respondent during the school term as agreed between the parties in writing and failing agreement each alternate week from after school Thursday until before school on Wednesday.
During all gazetted school holiday periods, the children shall spend time with the respondent as agreed between the parties in writing and failing agreement for one half of each school holiday period, being with the first half in even-numbered years and the second half in odd-numbered years and all other times with the applicant.
For the purposes of paragraph 6:
(a)school holiday periods are calculated as commencing at the conclusion of the final day…
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CaseChat Overview and Summary
In determining the parenting arrangements, the court found that the parties had entrenched conflict that impacted their ability to make decisions in the best interests of the children. The court opted for the independent children's lawyer's proposal, which mirrored previous arrangements and aimed to reduce conflict between the parents. Regarding property division, the court accepted the parties' agreement on contributions but made a 30% adjustment in favour of the applicant due to the respondent's significantly greater earning capacity and unclear evidence. The court also found that the applicant established a need for spousal maintenance and ordered the respondent to pay $583 per week until the applicant obtained full-time employment or its equivalent.
The court's orders reflect its findings and reasoning, establishing specific parenting arrangements, dividing the property, and awarding spousal maintenance. The orders also include provisions for the payment of legal costs and the destruction of certain documents. Finally, the court referred the applicant's trial affidavit, reasons for judgment, and the whole file to the Marshal of the Federal Circuit and Family Court of Australia for consideration of making an application for contempt by the applicant of the orders made on 9 September 2020.
Orders
Orders of the court
BRC 1692 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS HOFTE
Applicant
AND:
MR GILMOUR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
28 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.
The applicant and the respondent have equal shared parental responsibility for decisions concerning the major long-term issues for the children X born 2010 and Y born 2014.
2.
The children live with the respondent for a period of four weeks from the date of this order.
3.
During the period of four weeks that the children live with the respondent pursuant to paragraph 2, the children shall communicate with the applicant:
(a) on the Wednesday in weeks 2 and 3 by telephone between 5:30pm and 6:00pm with the applicant to initiate the call and the respondent to facilitate the call and ensure that the children have privacy during such communication; and
(b) on the Wednesday and Saturday in week 4 by telephone between 5:30pm and 6:00pm with the applicant to initiate the call and the respondent to facilitate the call and ensure that the children have privacy during such communication.
4.
Thereafter, commencing on the Wednesday in week 5, the children live with the applicant.
5.
Upon the commencement of paragraph 5 hereof, the children shall live with the respondent during the school term as agreed between the parties in writing and failing agreement each alternate week from after school Thursday until before school on Wednesday.
6.
During all gazetted school holiday periods, the children shall spend time with the respondent as agreed between the parties in writing and failing agreement for one half of each school holiday period, being with the first half in even-numbered years and the second half in odd-numbered years and all other times with the applicant.
7.
For the purposes of paragraph 6:
(a) school holiday periods are calculated as commencing at the conclusion of the final day of the school term of whichever child’s school term finishes the latest and concluding at 5:00pm on the afternoon before the first day of the next school term of whichever child’s school term commences the earliest;
(b) the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights, the children shall spend the additional night with the parent in whose care they are for the first half of the school holidays; and
(c) the times that the changeovers are to occur during school holidays are 5:00pm on the day determined pursuant to these orders to be the mid-point of the holidays.
8.
The children’s school term time with the respondent shall recommence on the first Thursday in each school term.
9.
Unless otherwise agreed between the parties in writing, the children shall spend time with each party on the following occasions:
(a) if not otherwise spending time with the respondent, with the respondent from 5:00pm on the evening before Father’s Day until the commencement of school on the Monday immediately following Father’s Day with the respondent to be responsible for the collection of the children from the applicant’s residence at the commencement of the time and delivery of the children to school at the conclusion of the time; and
(b) if not otherwise spending time with the applicant, with the applicant from 5:00pm on the evening before Mother’s Day until the commencement of school on the Monday immediately following Mother’s Day with the applicant to be responsible for the collection of the children from the respondent’s residence at the commencement of the time and delivery of the children to school at the conclusion of the time.
10.
Unless otherwise agreed between the parties in writing, the children shall communicate with each party by telephone or Facetime:
(a) at all times the children reasonably request; and
(b) between 5:30pm and 6:00pm on Wednesdays and Saturdays with the party with whom they are not spending time with to initiate the call.
11.
In relation to communication by telephone or Facetime, each party shall:
(a) ensure that the children are available to receive the telephone call;
(b) arrange for the children to telephone the other party on the following night if, for any unforeseen circumstance, the children miss the telephone call from that party; and
(c) ensure that the children have privacy during the conversation.
12.
Except as otherwise agreed between the parties in writing, changeover for the children shall occur as follows:
(a) if the children are attending school, at the children’s school or schools;
(b) if the children are not attending school, at the car park of B Shop, Suburb C;
13.
Save for attending ceremonial occasions or sporting events or fixtures in which one or other of the children is involved, each party is hereby restrained and an injunction hereby issues restraining each party by themselves, their servants or agents from attending the school upon any day where they are not required to collect the children pursuant to these orders.
14.
Each party shall deliver and return the children’s clothing, school supplies, sports uniforms, sports equipment and belongings at changeover, other than each party’s own uniforms, equipment and supplies.
15.
The parties shall:
(a) take all steps and do all things necessary to ensure the children are ready and available for collection at the commencement of their time with the other party;
(b) keep the other party informed at all times of their residential address and contact telephone number;
(c) keep the other party informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise those practitioners to provide to the other party information that they are lawfully able to provide about the children; and
(d) inform the other party as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children.
16.
This order authorises any school or treating medical practitioner attended by the children to give either party information about the children’s health, education, progress and other related activities and supply them with copies of relevant documentation relating to the children including but not limited to referrals, reports, photographs, certificates and awards, at the requesting party’s cost.
17.
During the time the children spend with each party, that party shall:
(a) respect the privacy of the other party and not question the children about the personal life of the other party;
(b) speak of the other party respectfully;
(c) not denigrate or insult the other party to any third person in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other party in the presence or hearing of the children;
(d) not discuss the family law proceedings or other adult issues with the children;
(e) not use profane, vulgar, obscene, threatening, bullying or irreverent language; and
(f) not expose the children to bullying conduct.
18.
Both parties are prohibited and an injunction hereby issues retraining them, from:
(a) using illicit substances at any time;
(b) consuming any alcohol whilst the children are in their care and for the period eight hours prior to the children coming into their care.
19.
The applicant is prohibited and an injunction issue restraining her by herself, her servants or agents from:
(a) telephoning the children outside the arrangements provided for in these orders;
(b) texting, emailing or otherwise messaging the children or responding to messages from the children:
(i) on any day where they are moving from the applicant’s care into the respondent’s care; and
(ii) on more than two occasions in each 24-hour period they are in the respondent’s care; and
(c) recording the children at changeover or during any time that they are communicating with the respondent.
20.
Within 14 days of the date of this order, each of the parties attend upon their general practitioner to obtain a referral to a suitably qualified psychologist and attend counselling as is recommended in paragraph 127 of the family report dated 19 August, 2020.
21.
The parties each have leave to provide to their general practitioner and referred psychologist a copy of the following:
(a) family reports of Mr D dated 19 August, 2020 and 3 July, 2023;
(b) a copy of this order.
22.
The parties facilitate the children’s attendance:
(a) in the event that it is so recommended by the children’s general practitioner, for therapeutic counselling with a qualified psychologist nominated by that general practitioner; and
(b) with a school counsellor, if requested by either child.
23.
The applicant do all acts and things to facilitate the children’s time with the respondent.
24.
Forthwith upon the making of these orders, the applicant shall vacate the Sir Harry Gibbs Commonwealth Courts Building, Brisbane and its immediate vicinity.
25.
Forthwith upon the making of these orders, the children may be removed from the presence of the court child services only by the respondent, his servants and/or agents.
26.
Within three business days of the date of these orders, E Lawyers are to pay from the funds held on trust for the parties:
(a) the sum of $110,000 into the F Lawyers Trust Account No 2, BSB …, Account Number …74 with description … as the solicitors for the liquidator;
(b) the sum of $16,853.00 to G School on account of the parties; and
(c) the balance to the applicant.
27.
Except as otherwise provided for in these orders, the applicant is entitled to be the sole legal and beneficial owner of the following:
(a) Motor Vehicle 1;
(b) any bank accounts in her sole name;
(c) the furniture and contents in her possession;
(d) the balance of the funds remaining in the E Lawyers Trust Account and
(e) her superannuation interests.
28.
Except as otherwise provided for in these orders, the respondent is entitled to be the sole legal and beneficial owner of the following:
(a) Motor Vehicle 2;
(b) any bank accounts in his sole name;
(c) the furniture and contents in his possession; and
(d) his superannuation.
29.
The applicant is appointed trustee for sale for the property located at H Street, Suburb J in the State of Queensland more particularly described as Lot … on Registered Plan … Title Reference … (“the Suburb J property”) and the property hereby vests in her for that purpose.
30.
Within seven days of the date of these orders, the applicant appoint an agent for sale of the Suburb J property.
31.
The applicant cause the Suburb J property to be listed for sale by private treaty within 14 days of the date of these orders at a sale price as recommended by the agent.
32.
If the Suburb J property has not sold by private treaty within 60 days of being listed for sale, it be listed for sale by auction by the listing agent with a reserve price as recommended by the agent.
33.
The proceeds of sale of the Suburb J property (whether sale is by private treaty or auction) shall be paid in the following manner and property:
(a) discharge of the A Bank home loan secured by mortgage over the Suburb J property with mortgage number …;
(b) payment of the agent’s commission and advertising and other expenses payable in respect of the sale;
(c) payment of reasonable legal costs and outlays relating to the sale; and
(d) the balance to the applicant.
34.
The parties shall each be responsible for the liabilities incurred in each of their names including all borrowings, personal loans, claims by third parties, liability associate with any asset either party is retaining and shall indemnify and keep indemnified each other against any liability that may occur in respect thereof.
35.
The applicant and Turnbull Mylne Solicitors immediately destroy all documents, communications and/or any other information whatsoever, whether electronic or in hard copy, including paragraphs 163 to 175 inclusive of the affidavit of the applicant filed 14 September, 2023 in the possession or control of the applicant relating to K Company, L Pty Ltd and/or any clients of K Company that have not been provided to the applicant on behalf of the respondent as part of these family law proceedings.
36.
The applicant and respondent do all things and sign all documents as may be necessary to give effect to the terms of these orders and that in the event the applicant or respondent refuses or neglects to sign such documents and do all such acts as may be necessary to give effect to these orders and that default continues for a period of three days from the date of any request to sign any such document, then:
(a) the Registrar or Deputy Registrar of the Brisbane Registry of the Federal Circuit and Family Court of Australia (division 1) is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all deeds and any documents in the name of the party failing to sign any such document as is required of them upon presentation of such document and an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal by the defaulting party;
(b) the execution of such documentation by the said Registrar or Deputy Registrar shall have the same force and validity as if the document had been executed by the defaulting party or parties; and
(c) an affidavit by the lawyer acting for the non-defaulting party shall be sufficient proof of the other party’s default.
37.
Until further order or until the applicant obtains full-time employment or its equivalent, the respondent pay the applicant spousal maintenance in the sum of $583 per week in the manner prescribed by the order of Austin J made on 19 July, 2022.
38.
The applicant’s trial affidavit filed 14 September, 2023, the reasons for judgment delivered on 28 September, 2023 and the whole of file BRC1692/2020 be referred to the Marshal of the Federal Circuit and Family Court of Australia (division 1) for consideration of making an application pursuant to r 11.71 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 for contempt by the applicant of the orders made on 9 September, 2020.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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