Holbert and Holbert (No 2) - [2020] FamCA 601

FAMILY COURT OF AUSTRALIA

HOLBERT & HOLBERT (NO. 2)

[2020] FamCA 601

FAMILY LAW – PROPERTY – Interim – Where it is agreed that the husband will no longer pay for the children’s school fees – Where the husband seeks to be relieved of his obligation to pay for expenses related to the former matrimonial home, as under interim spousal maintenance orders of 2018, on the basis that his financial situation has significantly deteriorated and no longer has capacity to meet these payments – Where order made in 2019 for the sale of two properties in the UK as husband not able to comply with 2018 orders and part of the proceeds of this sale set aside to meet mortgage payments on the former matrimonial home – Where the mother asserts that the husband’s financial position is not as dire as he alleges – Where it is found that in light of the 2019 orders for the sale of the UK properties, the husband ought to be relieved of his obligation to pay interim spousal maintenance – Where the husband seeks for the wife to meet half the expenses associated with one of the UK properties pending settlement – Husband’s application in this respect dismissed having regard to the fact that the husband has had control of all of the rental income from the UK properties since separation, and may not have fully disclosed how these funds have been applied, and has been relieved of obligation to pay interim spousal maintenance.

Family Law Act 1975 (Cth)

Holbert & Holbert [2019] FamCA 566

APPLICANT:

Ms Holbert

RESPONDENT:

Mr Holbert

FILE NUMBER:

MLC

2024

2018

DATE DELIVERED:

24 July 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

7 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dixon SC

SOLICITOR FOR THE APPLICANT:

Scanlan Carroll

COUNSEL FOR THE RESPONDENT:

Ms Lakey, Solicitor

SOLICITOR FOR THE RESPONDENT:

Lakey Family Law & Mediation

Orders

BY CONSENT:

The husband contact the children via telephone or electronic means at the following times:
(a) when the husband is working:
(i)Tuesday at 5.30 pm AEST or 6.30 pm AEDT;
(ii)Thursday at 5.30 pm AEST or 6.30 pm AEDT;
(iii)Sunday at 5.30 pm AEST or 6.30 pm AEDT;
(b) when the husband is not working:
(i)Tuesday at 6.30 pm AEST or 7.30 pm AEDT;
(ii)Thursday at 6.30 pm AEST or 7.30 pm AEDT;
(iii)Sunday at 6.30 pm AEST or 7.30 pm AEDT.
Neither party, their agents nor servants denigrate the other in the presence or hearing of the children and shall not discuss adult matters including these proceedings with the children or in the earshot of the children.
The husband’s obligation in respect of paying school fees pursuant to the order of 18 July 2018 shall continue until the end of term 2 and that at the end of term 2 the children will change to Suburb K School unless otherwise agreed between the parties.
The parties attend upon a family consultant pursuant…

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 Holbert and Holbert (No 2)

Details

AGLC: Holbert and Holbert (No 2) [2020] FamCA 601
Case: [2020] FamCA 601
Decision Date: 24 July 2020

CaseChat Overview and Summary

In *Holbert and Holbert (No 2)*, McEvoy J of the Federal Circuit and Family Court of Australia made orders by consent between the husband and wife concerning their children and ongoing proceedings. The dispute involved arrangements for the husband's contact with the children, the payment of school fees, and the future schooling of the children, as well as the dismissal of further interim or procedural applications made by both parties.

The court was required to determine the specific terms of the husband's telephone and electronic contact with the children, taking into account whether the husband was working or not, and to address the continuation of the husband's obligation to pay school fees. Additionally, the court needed to consider the children's change of school and the discharge of certain previous orders, while also determining the fate of outstanding interim and procedural applications.

The orders made by consent reflected an agreement between the parties on various matters. These included detailed provisions for the husband's contact with the children, a prohibition on denigration and discussion of adult matters in the children's presence, and the continuation of the husband's school fee obligations until the end of term 2, with a provision for the children to change schools thereafter unless otherwise agreed. The court also ordered the discharge of specific prior orders and dismissed further interim and procedural applications by both parties. The matter was then listed for a final hearing.

Orders

Orders of the court

BY CONSENT:

The husband contact the children via telephone or electronic means at the following times:

(a) when the husband is working:

(i) Tuesday at 5.30 pm AEST or 6.30 pm AEDT;

(ii) Thursday at 5.30 pm AEST or 6.30 pm AEDT;

(iii) Sunday at 5.30 pm AEST or 6.30 pm AEDT;

(b) when the husband is not working:

(i) Tuesday at 6.30 pm AEST or 7.30 pm AEDT;

(ii) Thursday at 6.30 pm AEST or 7.30 pm AEDT;

(iii) Sunday at 6.30 pm AEST or 7.30 pm AEDT.

Neither party, their agents nor servants denigrate the other in the presence or hearing of the children and shall not discuss adult matters including these proceedings with the children or in the earshot of the children.

The husband’s obligation in respect of paying school fees pursuant to the order of 18 July 2018 shall continue until the end of term 2 and that at the end of term 2 the children will change to Suburb K School unless otherwise agreed between the parties.

The parties attend upon a family consultant pursuant to section 11F of the Family Law Act.

Order 2(b) of the orders dated 18 July 2018 be discharged.

THE COURT ORDERS:

Order 2(a) of the orders dated 18 July 2018 be discharged.

Insofar as the wife has sought further interim or procedural orders in her Second Further Amended Initiating Application filed 5 March 2020, and insofar as the husband has sought further interim or procedural orders in his Amended Response to Initiating Application filed 14 April 2020, those applications be otherwise dismissed.

The matter be listed for hearing before the Honourable Justice McEvoy on 26 October 2020 for five days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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