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
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…
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CaseChat Overview and Summary
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
Orders of the court
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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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