Howell & Howell - [2023] FedCFamC2F 584

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Howell & Howell [2023] FedCFamC2F 584

File number(s): SYC 3722 of 2021

Judgment of: JUDGE ELDERSHAW

Date of judgment: 22 May 2023

Catchwords:
FAMILY LAW – PARENTING – FINAL ORDERS – Best interests – Parental responsibility – With whom the children live – With whom the children spend time

FAMILY LAW – PROPERTY – FINAL ORDERS – Where the husband receives a total and permanent disability payment – Where the father’s insurance payments have been co-mingled with the equity in the matrimonial home

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer seeks costs – Where no order for costs is made

Legislation:
Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 62B, 65DAA, 65DA, 65Y, 75, 79, 106A, 114, 117, 121

Firearms Act 1996 (NSW) s 79

Weapons Prohibition Act 1998 (NSW) s 38

Cases cited:
Adair & Adair [2019] FamCAFC 70

Aleksovski & Aleksovski (1996) FLC 92-705;[1996] FamCA 111

Beckett & Beckett [2017] FCCA 608

Clauson & Clauson (1995) FLC 92 – 595; [1995] FamCA 10

Jabbour & Jabbour (2019) FLC 93-898; [2019] FamCAFC 78

Norbis v Norbis (1986) 161 CLR 513

Perrin & Perrin (No 2) [2018] FamCAFC 122

Simons & Simons [2020] FamCAFC 128

Stanford v Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 369

Date of hearing: 24 & 26 – 28 April 2023

Place: Sydney

The Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms Spain

Solicitor for the Respondent: Vizzone Ruggero Twigg Lawyers

Counsel for the Independent Children's Lawyer: Mr Reeves

Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates
ORDERS

SYC 3722 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HOWELL

Applicant

AND:
MS HOWELL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE ELDERSHAW

DATE OF ORDER:

22 MAY 2023

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.All prior parenting and property orders made in these proceedings be discharged.

PARENTING
2.In these Orders, “the children” mean X born 2012 and Y born 2014.

Parental Responsibility
3.The parties shall have joint parental responsibility for all decisions about major long term issues for the children, except as to the children’s health.
4.The mother shall have sole parental responsibility for all decisions about major long term issues for the children’s health AND for this purpose:
(a)The mother must notify the father of her proposed decision in writing not less than 28 days prior to making any non-urgent major long term decision for the children including all reasonable particulars about the issue, including the contact details of any proposed treating health professional;
(b)The father must respond to the mother’s notification within a reasonable time;
(c)The mother must give proper genuine and realistic consideration of any view expressed by the father in relation to the proposed decision; and
(d)The mother must notify the father in writing of the decision within seven days of making it.

5.The mother must ensure that 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 Howell & Howell

Details

AGLC: Howell & Howell [2023] FedCFamC2F 584
Case: [2023] FedCFamC2F 584
Decision Date

CaseChat Overview and Summary

In Howell & Howell, the court made final orders regarding parenting and property between Mr Howell and Ms Howell. The key legal issues were determining the best interests of the children in relation to parenting arrangements and dividing the property between the parties.

For parenting, the court ordered that the children live with the mother but spend time with the father on a set schedule, including alternating weekends. The mother was given sole responsibility for health-related decisions for the children.

For property, the court ordered that the matrimonial home be sold, with the wife retaining the property and paying the husband $720,470. If the wife did not pay by the due date, the property would be sold and the proceeds divided 65% to the husband and 35% to the wife. The court also made orders regarding the distribution of other assets.

The court's reasoning focused on the contributions of each party to the marriage and the welfare of the children. The wife's contributions to the husband's care during his illness were taken into account. However, the husband's significant financial contributions and role in renovating the home favoured him. The court also made adjustments in favour of the husband due to his poor mental health and inability to work.

In summary, the court's orders aimed to achieve a just and equitable outcome for both parties and the children, based on the particular facts and circumstances of this case. The detailed parenting schedule and property division reflected the court's assessment of each party's contributions and needs.

Orders