Ireland and Maine (No 2) - [2010] FamCA 686

FAMILY COURT OF AUSTRALIA

IRELAND & MAINE (NO. 2)

[2010] FamCA 686

FAMILY LAW – CHILDREN – Relocation to Gold Coast – Shared parental responsibility orders requested by parties – Principles in parenting matters – Conflict and tension of the parties – Issues of violence – The emotional health and wellbeing of the party seeking to relocate – Consideration of time to be spent by other parent – New partners – Related financial issues to relocation and parenthood – Orders made for children to live with mother and be relocated to the Gold Coast

FAMILY LAW – PROPERTY – Just and equitable division of net proceeds of sale of home – Loans to parents – Superannuation

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61D, 61DA, 65DAA

Minagall v Ayres (1966) SASR 151
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304
In re J (a child) (FC) [2005] UKHL 40
Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70
A v A: Relocation approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
U & U (2002) HCA 36
Taylor and Barker (2007) FLC 93-345
Sampson and Hartnett (No. 10) (2007) FLC 93-350
Starr and Duggan [2009] FamCAFC 115
McCall and Clark (2009) FLC 93-405
Rosa and Rosa [2009] FamCAFC 81
Collu and Rinaldo [2010] FamCAFC 53
Pitken and Hendry [2008] FamCA 186
Fitzroy and Fitzroy [2009] FamCA 954
Lansa and Clovelly [2010] FamCA 80
Crowley and Mendoza [2010] FamCA 597
Mallahorn and Mallahorn [2010] FamCA 631
MRR v GR (2010) 263 ALR 368

APPLICANT:

MR IRELAND

RESPONDENT:

MS MAINE

FILE NUMBER:

MLC

2283

2009

DATE DELIVERED:

6 AUGUST 2010

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

12, 13,14 AND 15 JULY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS SMALLWOOD

SOLICITOR FOR THE APPLICANT:

GILLIAN COOTE FAMILY LAW

COUNSEL FOR THE RESPONDENT:

MR DAVIS

SOLICITOR FOR THE RESPONDENT:

KEMPSONS LAWYERS

INDEX

ORDERS

ISSUES

APPLICATION
AFFIDAVITS RELIED UPON BY PARTIES
THE CHILDREN
AGREED OUTCOMES
NOTICE OF CHILD ABUSE OR FAMILY VIOLENCE
FAMILY VIOLENCE

PREVIOUS COURT ORDERS
BACKGROUND FACTS
POOL OF ASSETS AND LIABILITIES
B PROPERTY
H PROPERTY

SUPERANNUATION
OBSERVATION OF WITNESSES
STANDARD OF PROOF
RELEVANT LEGAL PRINCIPLES
FAMILY LAW ACT 1975 (Cth) – RELEVANT SECTIONS
S 60CC CONSIDERATIONS
S 65DAA
FATHER’S PARENTING AND RESIDENTIAL PROPOSAL
MOTHER’S PARENTING AND RESIDENTIAL PROPOSAL

FATHER

MOTHER
FATHER’S POST SEPARATION TIME SPENT WITH THE CHILDREN
PARTIES’ EARLIER PROPOSED MOVE TO QUEENSLAND
FAMILY REPORT – MR A
MS M
BEST INTERESTS AND EQUAL TIME
BEST INTERESTS AND SUBSTANTIAL AND SIGNIFICANT TIME
SECTION 60CC(3)(d)
ORDERS - TIME TO BE SPENT BY FATHER
VENUE FOR CHANGEOVER
ADDITIONAL ORDERS
PROPERTY – APPROACH TO DIVISION OF NET ASSET POOL
SECTION 79(4)
SECTION 75(2) FACTORS
JUST AND EQUITABLE OVERVIEW

CONCLUSION

Orders

IT IS ORDERED:
Children

THAT all previous parenting and children’s orders be discharged as at the commencement date of…

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.

Keep reading for free

Create a free CaseChat account to read Ireland and Maine (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FamCA 686
Decision Date: 6 AUGUST 2010

CaseChat Overview and Summary

In *Ireland and Maine (No 2)*, Young J of the Family Court of Australia considered parenting and property matters between the parties. The central dispute in the parenting proceedings concerned the mother's application to relocate the children to the Gold Coast, Queensland, with the father seeking shared parental responsibility and specific time arrangements. The property proceedings involved the just and equitable division of the net proceeds from the sale of a property, as well as the apportionment of loans to parents and superannuation entitlements.

The court was required to determine the best interests of the children in accordance with the *Family Law Act 1975* (Cth), specifically considering the factors outlined in section 60CC, including the children's relationship with each parent, the likely effect of any proposed change on the children, and the capacity of each parent to provide for the children's needs. The court also had to consider the principles relating to shared parental responsibility and the practical implications of a relocation order, including the time the father would spend with the children and the associated travel arrangements. In relation to property, the court was tasked with making a just and equitable division of the parties' assets and liabilities, taking into account relevant factors under section 79(4) and section 75(2) of the Act.

Young J applied the principles of the *Family Law Act 1975* (Cth) to the evidence presented, including the family report and the parties' affidavits. The court found that it was in the children's best interests to live with their mother and to be relocated to the Gold Coast, while also ordering equal shared parental responsibility. The court carefully detailed the time the father would spend with the children, including regular weekends and school holidays, and established specific arrangements for travel and communication. In the property division, the court ordered that each party retain their superannuation and motor vehicles, and that the net proceeds of the sale of the H property be apportioned 58% to the father and 42% to the mother. The parties were also ordered to be responsible for any loans or debts owed to their respective parents.

Orders

Orders of the court

ISSUES

APPLICATION

AFFIDAVITS RELIED UPON BY PARTIES

THE CHILDREN

AGREED OUTCOMES

NOTICE OF CHILD ABUSE OR FAMILY VIOLENCE

FAMILY VIOLENCE

PREVIOUS COURT ORDERS

BACKGROUND FACTS

POOL OF ASSETS AND LIABILITIES

B PROPERTY

H PROPERTY

SUPERANNUATION

OBSERVATION OF WITNESSES

STANDARD OF PROOF

RELEVANT LEGAL PRINCIPLES

FAMILY LAW ACT 1975 (Cth) – RELEVANT SECTIONS

S 60CC CONSIDERATIONS

S 65DAA

FATHER’S PARENTING AND RESIDENTIAL PROPOSAL

MOTHER’S PARENTING AND RESIDENTIAL PROPOSAL

FATHER

MOTHER

FATHER’S POST SEPARATION TIME SPENT WITH THE CHILDREN

PARTIES’ EARLIER PROPOSED MOVE TO QUEENSLAND

FAMILY REPORT – MR A

MS M

BEST INTERESTS AND EQUAL TIME

BEST INTERESTS AND SUBSTANTIAL AND SIGNIFICANT TIME

SECTION 60CC(3)(d)

ORDERS - TIME TO BE SPENT BY FATHER

VENUE FOR CHANGEOVER

ADDITIONAL ORDERS

PROPERTY – APPROACH TO DIVISION OF NET ASSET POOL

SECTION 79(4)

SECTION 75(2) FACTORS

JUST AND EQUITABLE OVERVIEW

CONCLUSION

Orders

IT IS ORDERED:

Children

THAT all previous parenting and children’s orders be discharged as at the commencement date of the second week of the Victorian September school holidays in 2010.

THAT the mother and father (“the parties”) have equal shared parental responsibility for the children of the relationship C born … June 2004 and G born … December 2007 (“the children”).

THAT the children live with their mother.

THAT the children be permitted to be relocated by their mother to live on the Gold Coast, Queensland, from the commencement of the second week of the Victorian September school holidays in 2010.

THAT the children spend time with the father as follows:

(a) for two (2) weekends during each of the Queensland school terms (but not during the months of school holidays and to coincide with a long weekend in Queensland (if practicable) and -

(i) on one (1) such weekend the mother and the children are to travel to and from Melbourne at dates and times to be agreed; and

(ii) on the other such weekend the father is to travel to and from Queensland from Friday afternoon to Monday morning or otherwise as agreed (and to Tuesday if it is a Queensland long weekend);

(b) during Queensland school holidays:

(i) for the first two (2) weeks (13 consecutive nights) in January 2011;

(ii) in the December / January periods yearly thereafter and commencing 2011 / 2012 for 18 consecutive nights at dates and times to be agreed with Christmas Day to be with the mother in 2010 and in alternate years thereafter;

(iii) for one (1) week (7 consecutive nights) in each of the school term holidays in April, June, and September;

(c) at all other reasonable times and for an agreed period subject to the children’s schooling and activities when the father, or his parents, are in Queensland subject to the mother having been given no less than twenty-one (21) days prior written notice thereof;

(d) twice weekly, or more regularly as agreed, by electronic means including telephone, skype, webcam and e-mail, and for telephone time the father is to telephone the children at pre-arranged and convenient times and at his expense and the mother will ensure the children are available to receive such telephone calls;

(e) the mother, when the children are on holidays or time spent with the father, have contact with them, at her expense, likewise as provide for in (d) hereof;

(f) subject to agreement with the mother, and all cost and travel issues being resolved by discussion, on his birthday and Father’s Day if such time can be incorporated within (a), (b) or (c) hereof;

(g) again by agreement the father’s time with the children should not occur on Mother’s Day or on her birthday if such time can be excluded from (a), (b) or (c) hereof;

(h) at all other reasonable times agreed between the parties;

(i) for all time spent periods the changeover venue be the school C attends on the Gold Coast, or the airport(s) or as agreed by the parties from time to time.

THAT the mother pay the reasonable return air travel costs of the children and herself (but not the father) for the time spent periods provided for in orders 5(a)(i) and 5(b)(i), (ii) and (iii) hereof but for a maximum of seven (7) occasions in each calendar year commencing 2011 and liberty is specifically reserved to each of the parties to apply in writing and upon proper material filed for a variation of this payment requirement on or after 1 February 2014.

THAT the father pay all of his air travel costs and related expenses.

THAT all air flights are to be booked, by agreement between the parties and failing agreement by the mother, as early as possible to take advantage of discount offerings from the air lines (and it is intended by this order that all such air flights (save January 2011) be booked and paid for by the parties at least nine (9) months in advance of time to be spent with the children).

THAT the father is to be in substantial attendance at all periods of time spent with the children in Melbourne, save that for his actual daytime work hours, if required, then the children can be cared for by his parents or Ms D.

10.

THAT the mother be responsible for transport of the children to and from Coolangatta or Brisbane airports and the father be likewise responsible for all such transport to and from Melbourne or Avalon airports and at all times the children be at the airport(s) one (1) hour prior to departure.

11.

THAT the mother authorise all Queensland schools and kindergartens to provide to the father, at his expense, copies of all reports of the children and notices of special events including school concerts and parent / teacher interviews.

12.

THAT the parties and their servants or agents be and are each restrained from abusing or denigrating the other.

13.

THAT both parties are to keep the other fully informed of any medical or health issue of either of the children or any incident involving their wellbeing which occurs whilst in their care.

14.

PURSUANT to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

PROPERTY

15.

THAT each party retain their superannuation entitlements.

16.

THAT each party retain their motor vehicles and all personal assets, shares, chattels and possessions.

17.

THAT the net proceeds of sale of the H property, estimated in the sum of approximately $301,500, be apportioned as to 58% to the father and 42% to the mother.

18.

THAT the parties be each responsible for any loan, debt, advance or borrowing owing to their parents and indemnify and keep indemnified the other in that regard.

19.

THAT unless otherwise specified and except for the purposes of enforcing any order:

(a) any joint tenancy of the parties in the H property is expressly severed;

(b) each party be solely liable and indemnify the other against any liability encumbering any item of personal property to which that party is entitled pursuant to these orders.

20.

THAT all extant applications be otherwise dismissed and the proceedings be removed from the docket of Young J.

21.

THAT all documents subpoenaed to Court be forthwith returned by the Subpoenas Clerk, Family Court, Melbourne Registry to the person or organisation who produced such documents to the Court.

IT IS CERTIFIED

22.

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the mother and father.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.