FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOGAN & HOGAN | [2008] FMCAfam 1219 |
| FAMILY LAW – Property – valuations of personalty – whether paid legal costs should be added back – should the husband’s expenditure on cannabis be added back as waste – whether liabilities of parties be added back to the pool – the effect of the husband’s interest in a trust – s.75(2) factors. FAMILY LAW – Parenting – cannabis use and its effect on parenting – children’s views – the likely effect of changes in the children's circumstances – equal or substantial and significant time? |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 79, 75 |
| Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Barnard M., Drug Addiction and Families, London: Jessica Kingsley; 2007 |
| Applicant: | MR HOGAN |
| Respondent: | MS HOGAN |
| File Number: | SYC 2447 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 26 August 2008 |
| Date of Last Submission: | 26 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cleary |
| Solicitors for the Applicant: | Atkinson Vinden Heazlewoods |
| Counsel for the Respondent: | Mr Gould |
| Solicitors for the Respondent: | Humpreys & Feather Solicitors |
ORDERS
That the children [X] born in 1998 and [Y] born in 2001 live with the wife.
That the children spend time with the husband as follows:
(a)In week one of a two week cycle from after school on Thursday until Monday morning;
(b)In week two of a two week cycle from after school Friday until 10.00am Saturday;
(c)For one half of each of the New South Wales gazetted school holiday periods, as agreed, and failing agreement, for the first half of such holidays in even numbered years and for the second half of such holidays in off numbered years;
(d)From 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years;
(e)From 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years;
(f)From 9.00am to 5.00pm on Father’s Day each year;
(g)For a period of not less than two hours on the children’s birthdays in the event that they fall on a weekday and for a period of not less than four hours in the event that they fall on a weekend.
That the husband’s time with the children abate as follows:
(a)From 3.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years;
(b)From 3.00pm Christmas Day until 3.00pm Boxing…
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- AGLC
- Hogan & Hogan [2008] FMCAfam 1219
- Case
- [2008] FMCAfam 1219
- Decision Date
CaseChat Overview and Summary
The court had to determine several legal issues, including whether legal costs incurred by the husband should be added back to the property pool, whether his expenditure on cannabis should be considered as waste, and if the liabilities of both parties should be factored into the property division. Additionally, the court needed to assess the husband's interest in a trust and how this should be treated under section 75(2) of the Family Law Act, which requires consideration of the principles of just and equitable division of property. The court also had to decide on the appropriate parenting arrangements for the children, considering factors such as the husband's cannabis use and its impact on his parenting abilities.
The court found that the husband's legal costs should not be added back to the property pool, and his cannabis expenditure did not qualify as waste. It also determined that the liabilities of both parties should not be added back to the pool. Regarding the husband's interest in the trust, the court held that it should be included in the property division. Under section 75(2), the court considered the contributions of each party to the welfare of the family, including non-financial contributions, and decided that an equal division of the property was appropriate. For the parenting arrangements, the court concluded that the children should live primarily with the wife but would spend substantial and significant time with the husband, as outlined in the orders.
The court ordered that the children live with the wife but spend substantial and significant time with the husband according to a detailed schedule. It also restrained the husband from consuming illegal drugs during his time with the children. The court ordered a transfer of certain properties and assets, and each party was to retain their superannuation and other entitlements. The husband was required to pay a specific amount to the wife and to transfer his interest in a BMW. Each party remained liable for their pre-existing debts, and the court appointed the Registrar to execute necessary documents if either party failed to do so.
Orders
Orders of the court
1.
That the children [X] born in 1998 and [Y] born in 2001 live with the wife.
2.
That the children spend time with the husband as follows:
(a) In week one of a two week cycle from after school on Thursday until Monday morning;
(b) In week two of a two week cycle from after school Friday until 10.00am Saturday;
(c) For one half of each of the New South Wales gazetted school holiday periods, as agreed, and failing agreement, for the first half of such holidays in even numbered years and for the second half of such holidays in off numbered years;
(d) From 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years;
(e) From 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years;
(f) From 9.00am to 5.00pm on Father’s Day each year;
(g) For a period of not less than two hours on the children’s birthdays in the event that they fall on a weekday and for a period of not less than four hours in the event that they fall on a weekend.
3.
That the husband’s time with the children abate as follows:
(a) From 3.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years;
(b) From 3.00pm Christmas Day until 3.00pm Boxing Day in off numbered years;
(c) From 9.00am to 5.00pm on Mother’s Day each year;
(d) For a period of not less than two hours on the children’s birthdays in the event that they fall on a weekday and for a period of not less than four hours in the event that they fall on a weekend.
4.
That the husband be restrained by injunction from consuming illegal drugs for a period of twenty-four (24) hours before or during the time that the children are spending time with him.
5.
That within forty-two days of the making of these Orders the husband do all acts and things and sign all documents necessary to transfer to the wife all his right, title and interest in the former matrimonial home into her name solely.
6.
That simultaneously with the transfer in Order 5 hereof the wife do all acts and things and sign all documents necessary to re-finance the existing mortgage over the former matrimonial home into her name solely.
7.
That simultaneously with the transfer referred to in Order 5 hereof the husband pay to the wife the sum of $2,498.
8.
That the husband be declared the owner at law and in equity of his one-half interest in the property situated at and known as Property T.
9.
That within fourteen (14) days of the making of these Orders the Husband do all acts and things and sign all documents necessary to transfer to the wife all his right, title and interest in the BMW motor vehicle, registration number [omitted].
10.
Except as otherwise provided herein the husband and the wife each be declared the owner at law and equity of all items of property including but not limited to motor vehicles, shares, furniture, personalty including but not limited to money, jewellery and personal effects presently standing in their name or in their respective possession and control.
11.
Except as otherwise provided herein the husband and wife remain liable for any debts in their own name as at the date of these Orders and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.
12.
That the husband and wife each be entitled to retain such superannuation, annuity entitlements and pension benefits to which they are or might become entitled in their own right.
13.
That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, the Registrar of the Family Court of Australia be appointed pursuant to s.106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity and operation to the deed or instrument.
14.
That in the event that the wife is unable to comply with order (6), should the parties need further orders in order to implement the reasons for judgment in this matter, they may relist on 7 days notice as regards interpretation, implementation or enforcement of these orders.
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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