Hourd & Hourd - [2009] FamCA 711

FAMILY COURT OF AUSTRALIA

HOURD & HOURD

[2009] FamCA 711

FAMILY LAW – CHILDREN – whether the presumption of equal shared responsibility has been rebutted pursuant to s.61DA(4) – whether it is in the best interests of the two children that the Applicant be permitted to live with them in Brisbane rather than Sydney – consideration of the benefit to the children of a meaningful relationship with each of the parties – relevant matters in relation to periods of time which the Respondent may spend with the children

FAMILY LAW – PROPERTY ADJUSTMENT – weight to be given to financial contributions made by the Respondent – weight to be given to relevant matters pursuant to s 75(2) including financial resources – orders that are just and equitable

Family Law Act 1975 (Cth) ss 60(5), 60B, 60CA, 60CC, 61DA(4), 65AA, 65DAA, 75(2), 79

Preece and Preece (1981) FLC 91-048
Smith and Smith (1991) FLC 92-261
Elsey and Elsey (1997) FLC 92-727
AMS v AIF (1999) FLC 92-852
U v U (2002) FLC 93-112
Taylor & Barker (2007) FLC 93-345
Hickey & Anor and Attorney-General for the Commonwealth [2003] FamCA 395
Mazorski & Albright [2007] FamCA 520

APPLICANT:

Ms Hourd

RESPONDENT:

Mr Hourd

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYC

6841

2007

DATE DELIVERED:

6 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

26 - 27 February; 2 March 2009

Written submissions

17, 23 March 2009
16, 20 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

G. Johnston

SOLICITOR FOR THE APPLICANT:

Gells Lawyers

COUNSEL FOR THE RESPONDENT:

J. Lloyd

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

C. Sperling

Orders

PARENTING ORDERS

That the parties have equal shared parental responsibility in relation to their two children C born … June 2004 and L born … May 2006 (“the two children”) AND the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
That the two children live with the Applicant.
That the Respondent may spend time and communicate with the two children as follows:-
During School Term (irrespective of the youngest child attending preschool)
(a)In accordance with the current sequence pursuant to Interim Orders made 11 November 2008, namely each alternate weekend from 9am Saturday until Monday immediately prior to the commencement of school or preschool and in each alternate week from Monday 3.30pm until Wednesday 9am changeover of care to take place in the B area or at the child day-care centre in accordance with current arrangement or as varied by agreement between the parties from time to time.
(b)On Fathers Day from 9am until 6pm in the event that it falls on the weekend when the Respondent does not have the two children in his care.
(c)From 3pm 24 December to…

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 Hourd & Hourd

Details

AGLC: Hourd & Hourd [2009] FamCA 711
Case: [2009] FamCA 711
Decision Date: 6 August 2009

CaseChat Overview and Summary

In the matter of *Hourd & Hourd*, the Applicant and Respondent, who are parents of two children, C and L, sought final parenting and property adjustment orders. The core of the parenting dispute concerned whether the presumption of equal shared parental responsibility should be rebutted and whether the children should live with the Applicant in Brisbane or Sydney, with consideration given to the children's relationship with each parent and the Respondent's time with them. The property adjustment aspect involved the weight to be given to the Respondent's financial contributions and relevant matters under s 75(2) of the *Family Law Act 1975* (Cth) in determining a just and equitable property division.

The court was required to determine if the presumption of equal shared parental responsibility, as stipulated by s 61DA(4) of the *Family Law Act 1975* (Cth), had been rebutted. Furthermore, the court had to consider what living arrangements for the two children would be in their best interests, specifically whether the Applicant should be permitted to reside with them in Brisbane. This involved assessing the benefit of a meaningful relationship with each parent and determining appropriate periods for the Respondent to spend with the children. In relation to property, the court needed to weigh the significance of the Respondent's financial contributions and consider other relevant factors, including financial resources, to make just and equitable property adjustment orders.

Justice Rose ordered that the parties retain equal shared parental responsibility for the two children, C and L. The children were ordered to live with the Applicant. The Respondent was granted specific periods of time to spend with and communicate with the children, detailed across school terms, holidays, and birthdays, with provisions for changeovers and communication. The court also made orders concerning the sale of the former matrimonial home, with proceeds to be distributed with 47% in favour of the Applicant and the balance to the Respondent. The Respondent was also ordered to transfer his shareholding and loan account in G Consultants Pty Limited to the Applicant and resign from his offices in that company. Each party was declared the sole owner of personalty in their possession, and specific arrangements were made regarding the division of wine stored at the former matrimonial home.

Orders

Orders of the court

PARENTING ORDERS

That the parties have equal shared parental responsibility in relation to their two children C born … June 2004 and L born … May 2006 (“the two children”) AND the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

That the two children live with the Applicant.

That the Respondent may spend time and communicate with the two children as follows:-

During School Term (irrespective of the youngest child attending preschool)

(a) In accordance with the current sequence pursuant to Interim Orders made 11 November 2008, namely each alternate weekend from 9am Saturday until Monday immediately prior to the commencement of school or preschool and in each alternate week from Monday 3.30pm until Wednesday 9am changeover of care to take place in the B area or at the child day-care centre in accordance with current arrangement or as varied by agreement between the parties from time to time.

(b) On Fathers Day from 9am until 6pm in the event that it falls on the weekend when the Respondent does not have the two children in his care.

(c) From 3pm 24 December to 3pm 25 December in each even numbered year and from 3pm 25 December to 3pm 26 December in each odd numbered year.

(d) On the birthdays of each of the two children by agreement between the parties or failing agreement as follows:-

(i) In the event that the birthday falls on a weekend when the two children are not in the care of the Respondent then from 9am until 2pm in each even numbered year and from 2pm until 6pm in each odd numbered year;

(ii) In the event that the birthday falls on a school day when the two children are not otherwise in the Respondent’s care then from after school until 6pm.

End of school term holiday periods

2009 and 2010

(e) For four (4) overnight successive days commencing at 9am and concluding at 6pm in each school holiday period save and except for the school holiday period following the conclusion of the last school term for two (2) block periods of four (4) successive overnight days no less than one (1) week apart nominated in writing by the Respondent to the Applicant no less than six (6) weeks in advance or failing such notice as nominated by the Applicant to the Respondent in Writing.

(f) For such alternative or other periods as the parties may agree upon in writing unless urgency prevents one or other from doing so.

2011 and thereafter

(g) For half of all school holiday periods being the first half in each even numbered year and the second half in each odd numbered year provided the latter shall commence at 9am on the first day of such periods and shall conclude at 6pm on the last Saturday prior to the commencement of the new school term.

(h) For such alternative or other periods as the parties may agree upon in writing unless urgency prevents one or other from doing so.

(i) Changeover of care of the two children for all holiday periods commencing this year shall take place as provided in order 3(a) or as varied by agreement between the parties from time to time.

That Order numbered 3(a) is suspended on Mothers Day whereupon the parties shall ensure that the two children are in the care of the Applicant from 9am until the commencement of the next period of time that they are due to be in the care of the Respondent.

That in the event of the two children being in the care of the Respondent on their birthdays then they shall spend time with the Applicant as agreed between the parties or failing agreement as follows:-

(i) In the event that the birthday falls on a weekend when the two children are not in the care of the Applicant then from 9am until 2pm in each even numbered year and from 2pm until 6pm in each odd numbered year;

(ii) In the event that the birthday falls on a school day when the two children are not otherwise in the Applicant’s care then from after school until 6pm.

That each of the parties shall ensure that the other has his or her current land line and mobile telephone numbers and email address for the purposes of communication between them in relation to the matters affecting the two children or either of them.

That the party with whom the two children are living shall do all things necessary to facilitate the two children speaking by telephone to the other party between the hours of 6pm and 7pm each day and between 9am and 10am on Christmas Day or as otherwise agreed upon provided that in the event of the two children or either of them not being available to speak to that party then the party with whom the two children or either is living shall ensure that such telephone conversation is able to take place as soon as possible that day.

That in the event of the two children or either of them suffering a serious illness or injury whilst in the care of one of the parties then that party shall immediately inform the other party of the detail thereof and the name, address and telephone number of the relevant medical practitioner and/or hospital administering or likely to administer treatment for that child.

That each of the parties shall furnish all written authorities and directions as may be required from time to time to enable the parties to receive copies of all preschool and school reports, notices and correspondence in relation to the two children.

10.

That each of the parties shall ensure that the two children are able to attend and participate in all sport, extra-curricular and social activities as are reasonable during such periods that the two children or either of them are in the care of either of the parties.

11.

That each of the parties is restrained from making any derogatory remark about the other or any of his or her relatives or friends to or in the presence of the two children or either of them.

12.

That the Applicant is restrained from altering the place of permanent residence of the two children or either of them to a place outside of the Sydney metropolitan area without the prior written consent of the Respondent or Court Order.

13.

That on or before 5pm 13 August 2009 each of the parties shall instruct their legal representatives to attend upon the Manager of the Child Dispute Section in the Sydney Registry of the Court or her nominee for the purpose of obtaining a recommendation of a suitable course to be completed by each of the parties together or separately as each party may desire to advance cooperative parenting and communication between them in relation to all matters affecting the two children or either of them.

14.

That each of the parties shall enrol and complete the course nominated in accordance with order 13 as soon as possible and shall provide written details of such course to the other on or before 5pm 20 August 2009 and subsequently shall provide to the other upon completion of the course a certificate or letter from the person or organisation conducting such course to the effect that the party concerned has satisfactorily completed the course.

Property Settlement Orders

15.

That the parties forthwith sign all documents and cause all things necessary to cause a sale by public auction of the property situate at and known as B property (“the former matrimonial home”) for a reserve price of $1,900,000 or such other amount as the parties may agree upon in writing to be conducted by an auctioneer agreed upon between the parties in writing or failing agreement as nominated by or on behalf of the President of the Real Estate Institute of New South Wales.

16.

That the parties shall retain a solicitor for the purpose of carrying out the conveyancing work in relation to the sale of the former matrimonial home as agreed upon between them in writing or failing agreement as nominated by the President of the Law Society of New South Wales.

17.

That in the event of the parties not receiving an offer for purchase of the former matrimonial home at or exceeding the reserve price then they will join in the sale of it at the best price reasonably obtainable by them unless otherwise agreed in writing.

18.

That the parties shall cause the proceeds of sale of the former matrimonial home to be applied in payment of the following:-

(i) Real estate agent’s commission and auction expenses.

(ii) Legal costs of sale.

(iii) Discharge of the mortgage.

(iv) An amount equal to 47% of the balance in favour of the Applicant.

(v) The remaining balance to the Respondent.

19.

That the Respondent transfer to the Applicant his shareholding and any loan account to his credit in G Consultants Pty Limited (“the company”) and shall resign from all offices held in that company on or before 5pm 20 August 2009.

20.

That the Applicant shall indemnify the Respondent against all claims that may be made against him arising out of any loan account indebtedness that he has or may have to the company.

21.

Declare that each of the parties is the sole owner of all items of personalty in his or her possession, power or control.

22.

That the Applicant may transfer to the exclusive use of the Respondent all or any of the wine stored in the former matrimonial home upon him simultaneously paying to her the current wholesale market value of such wine as agreed upon in writing or failing agreement as determined by an independent agreed valuer whose fees shall be met by the parties equally.

Procedural Orders

23.

That all documents produced on subpoena may be returned to the person who produced the same.

24.

That the proceedings be removed from the Active Pending Cases List.

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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