INGLIS & INGLIS - [2011] FMCAfam 367

FEDERAL MAGISTRATES COURT OF AUSTRALIA

INGLIS & INGLIS

[2011] FMCAfam 367

FAMILY LAW – Children – best interests – equal shared parental responsibility – whether father’s time should be in one block – driving with excessive blood alcohol level when children were in the car – “miniscule” Child Support.

FAMILY LAW – Property – asset pool – whether motor vehicle should be “added back” – assessing contributions not a precise mathematical exercise – purported loan agreements – no provision for wife to sign – enforcement probably statute barred – whether funds a gift to benefit husband only – whether funds were “payments in kind” – low taxable incomes declared – “traditional roles” – contributions after separation – obligation to make full disclosure – wife has no real work experience or qualifications.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 62B, 65DAA, 75, 79, 81, 90MC, 90MT
Limitation of Actions Act 1958 (Vic), s.5

Aldridge & Keaton (2009) FLC 93-421
C and C [1998] FamCA 143
Carpenter and Lunn (2008) FLC 93-377
Champness & Hanson (2009) FLC 93-407
Chappell & Chappell (2008) FLC 93-382
Re NHC and RCH (2004) FLC 93-204
Clauson & Clauson (1995) FLC 92-595
C v C (2005) FLC 93-220
Ferraro v Ferraro (1993) FLC 92-335
Gollings and Scott (2007) FLC 93-319
Gosper & Gosper (1987) FLC 91-818
Hickey & Hickey (2003) FLC 93-143
Jones v Dunkel (1959) 101 CLR 298
Kessey & Kessey (1994) FLC 92-495
Lee Steere (1985) FLC 91-626
Mallett & Mallett (1984) FLC 91-507, (1984) 156 CLR 605, (1984) 52 ALR 193
M & M [1998] FamCA 42
Milankov and Milankov (2002) FLC 93-095
Mills & Watson [2008] FMCAfam 2
Mulvaney & Lane (2009) FLC 93-404
AJO v GRO (2005) FLC 93-218
OSF and OJK (2004) FLC 93-191
Russell v Russell (1999) FLC 92-877
Stirling & Dobson [2011] FMCAfam 52
Townsend and Townsend (1995) FLC 92-569
Wilde & Wilde [2007] FamCA 1044

Applicant:

MS INGLIS

Respondent:

MR INGLIS

File Number:

MLC 11571 of 2009

Judgment of:

Roberts FM

Hearing dates:

15, 16 and 17 November 2010

Date of Last Submission:

17 November 2010

Delivered at:

Launceston

Delivered on:

21 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr D. Laidlaw

Solicitors for the Applicant:

Defteros Lawyers

Counsel for the Respondent:

Mr A. Barbayannis

Solicitors for the Respondent:

Maria Barbayannis & Co

ORDERS

Children

That by consent MR INGLIS (“the husband”) and MS INGLIS (“the wife”) have equal shared parental responsibility for [X] born [in] 2001 and [Y] born [in] 2003 (“the children”).
That the children are to live with the wife.
That the children are to spend time with the husband as follows:
(a)during school terms, from the conclusion of school on Wednesday until the commencement of school on Monday in each alternate week and unless otherwise agreed such is to commence on the first Wednesday of each school term;
(b)from the conclusion of school on the Thursday of the other week in each fortnight until 8:00 pm with such to commence…

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 INGLIS & INGLIS

Details

AGLC: INGLIS & INGLIS [2011] FMCAfam 367
Case: [2011] FMCAfam 367
Decision Date: 21 April 2011

CaseChat Overview and Summary

The matter before the court involved the parties, Mr. and Ms. Inglis, who were dealing with issues of parental responsibility and property division following their separation. The central dispute revolved around the allocation of parental responsibilities for their two children and the equitable distribution of their assets. The court was tasked with determining the best interests of the children and making orders concerning their residence and time spent with each parent. Additionally, the court had to assess and divide the asset pool, including whether certain assets should be considered or "added back" into the pool.

The legal issues before the court included whether the father’s time with the children should be consolidated into one block, considering his previous incident of driving with excessive blood alcohol levels while the children were in the car. The court also had to decide on the appropriate division of assets, including whether a motor vehicle should be included in the asset pool and whether certain funds should be regarded as gifts or payments in kind. The court further examined the contributions of each party to the marriage and post-separation, as well as the obligation to disclose all relevant financial information.

The court determined that the children’s best interests were served by having equal shared parental responsibility, with the children residing primarily with the mother. The father was granted specific visitation times, which alternated weekly and during school holidays, while certain periods, such as Christmas Day and Mothers' Day, were excluded from his visitation. The court found that the father’s concerns about having to drive the children on certain days were unfounded, as there were no safety issues, and the father’s past conduct did not preclude him from spending time with the children. Regarding property, the court decided that the wife was to pay the husband $100,000, or alternatively, the husband would pay the wife $312,000. These payments were contingent upon the transfer of the matrimonial home and its associated mortgage. If neither party could make the specified payments, the home would be sold, with the proceeds distributed according to the asset pool calculations.

The final orders of the court included detailed provisions for the children’s residence, visitation schedules, and the division of property, ensuring that both parents had the opportunity to maintain a meaningful relationship with the children while addressing the financial implications of the separation.

Orders

Orders of the court

Children

That by consent MR INGLIS (“the husband”) and MS INGLIS (“the wife”) have equal shared parental responsibility for [X] born [in] 2001 and [Y] born [in] 2003 (“the children”).

That the children are to live with the wife.

That the children are to spend time with the husband as follows:

(a) during school terms, from the conclusion of school on Wednesday until the commencement of school on Monday in each alternate week and unless otherwise agreed such is to commence on the first Wednesday of each school term;

(b) from the conclusion of school on the Thursday of the other week in each fortnight until 8:00 pm with such to commence on the second Thursday of each school term unless otherwise agreed;

(c) for half of all school holiday periods by agreement, but failing agreement for the first half in odd numbered years and the second half in even numbered years, with changeover to occur at 12.00 midday on the middle day of each holiday period;

(d) if the children are not otherwise with the husband:

(i) on each of the children’s birthdays and on the husband’s birthday from the conclusion of school until 6:00 pm if such day is a school day and from 10:00 am until 2:00 pm if such day is a non-school day; and

(ii) from 10.00 am until 6.00 pm on Fathers’ Day in each year;

(e) for half of the Greek Easter weekend in each year, being from 5.00 pm on Easter Thursday until 5.00 pm on Easter Saturday in odd numbered years, and from 5.00 pm on Easter Saturday until the commencement of school on Easter Monday (or 10.00 am if a non-school day) in even numbered years;

(f) from 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day in 2010 and in each alternate year thereafter;

(g) from 4.00 pm on Christmas Day until 6.00 pm on Boxing Day in 2011 and in each alternate year thereafter; and

(h) at such other times that may be agreed between the parties.

That the children’s time with the husband is to be suspended as follows:

(a) from 4.00 pm on Christmas Day until 6.00 pm on Boxing Day in 2010 and in each alternate year thereafter;

(b) from 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day in 2011 and in each alternate year thereafter;

(d) for half of the Greek Easter weekend in each year, being from 5.00 pm on Easter Thursday until 5.00 pm on Easter Saturday in odd numbered years, and from 5.00 pm on Easter Saturday until the commencement of school on Easter Monday (or 10.00 am if a non-school day) in even numbered years

That each parent is to ensure that the children attend their school, sporting and extra-curricular activities while they are in the care of that parent.

That when changeover does not occur at school, the husband is to collect the children from the wife’s home at the start of those periods of time that they are to spend with him and return them to her home at the end of such periods.

That the parties are to each keep the other informed of their residential address and mobile and landline telephone numbers at all times and notify the other within 24 hours of any change to either his or her address or telephone number.

That each party is to notify the other as soon as possible of any illness or injury suffered by either of the children and of any medical, dental, hospital or like treatment received by the child and the other party is at liberty to contact the doctor, dentist, hospital or other health professional who has treated either child to make enquiries about the health of the child.

That the parties each have liberty to:

(a) approach and communicate directly with the children’s schools or educational institutions;

(b) obtain copies of school reports, photographs, newsletters, notices, and the like;

(c) attend parent teacher nights, school concerts, prize and special nights, sporting events and any similar school functions that parents would ordinarily be able to attend; and

(d) attend all sporting and extra curricular activities involving either of the children.

10.

That in the event that either parent has a significant or special event (including, but not limited to significant family gatherings, Christenings, weddings) upon being provided with notice of the event, the parties are to do all such acts and things reasonably necessary to ensure that the children are able to attend such event.

11.

That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations that the preceding Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure “A” to these Orders and these particulars are included in these Orders.

Property

12.

That within 90 days of the date of these Orders (“the first period”) the wife is to pay to the husband the sum of $100,000 (one hundred thousand dollars) (“the wife’s payment”).

13.

That contemporaneously with the wife’s payment the husband must transfer to the wife all his right, title and interest in the former matrimonial home situate at and known as Property M in Victoria (“the home”) and the wife must discharge the existing mortgage which encumbers the home and refinance the home to exclude any liability on the part of the husband.

14.

That in the event that the wife is unwilling or unable to make the wife’s payment within the first period or the wife has otherwise notified the husband or his solicitors in writing that she is unable or unwilling to make the wife’s payment then the husband is to pay to the wife the sum of $312,000 (three hundred and twelve thousand dollars) (“the husband’s payment”) within a further 60 days from the date of the notification or the end of the first period whichever shall first occur (“the second period”) and contemporaneously with the husband’s payment the wife must transfer to the husband all her right, title and interest in the home and that the husband must discharge the existing mortgage which encumbers the home and refinance the home to exclude any liability on the part of the wife.

15.

That in the event that husband is unwilling or unable to make the husband’s payment by the end of the second period then the parties must forthwith engage a real estate agent to be agreed between the parties but failing agreement as nominated by the president of Real Estate Institute of Victoria (“the agent”) to sell the home at public auction or on such terms and conditions as may be agreed between the parties in consultation with the agent and in default of agreement as directed by the agent.

16.

That the net proceeds of the sale of the home are to be applied as follows:

(a) firstly to pay all costs, commissions and expenses of the sale;

(b) secondly to discharge any mortgage and any other encumbrances affecting the home;

(c) thirdly to pay to the wife from the resulting balance (“the balance sum”) a sum equivalent to 67.5% (sixty-seven and a half per cent) of the total asset pool; and

(d) fourthly to pay the balance to the husband.

17.

That for the purposes of Order No. 16 hereof “the total asset pool” shall be the total of the balance sum plus a further sum of $51,000 (fifty-one thousand dollars);

18.

That pending the transfer of the home to either the wife or the husband or its sale pursuant to these Orders;

(a) the Wife has the sole right to occupy the former matrimonial home and during such occupation she must pay all instalments pursuant to the mortgage and all rates and similar outgoings in relation to the home as they fall due;

(b) the parties hold their respective interests in the home upon trust pursuant to these orders; and

19.

That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:

(a) each party to be solely entitled to the exclusion of the other to all property (including choses-in-action and superannuation entitlements) in the possession of such party as at this date;

(b) any monies standing to the credit of the parties in any bank account in their name is to remain the property of that party;

(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these Orders; and

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

20.

That the parties have liberty to apply in relation to the implementation of the property orders made today.

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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