IRVINE & IRVINE - [2019] FamCA 627

FAMILY COURT OF AUSTRALIA

IRVINE & IRVINE

[2019] FamCA 627

FAMILY LAW – CHILDREN – Relocation – Where the mother seeks at a late stage before trial to relocate from Town A to Town B – Where the court satisfied it is reasonably practicable for the mother to remain living in Town A – Where not practicable for the father to relocate to Town B – Where the father asserts that the mother is unable to co-parent without his assistance due to her mental health – Where the father’s assertion unsupported by evidence – Where the court does not permit relocation – Order for equal shared parental responsibility – Order for the child’s living arrangements as sought by the father – Order for the child to spend six months living in Germany.

FAMILY LAW – PROPERTY – Spousal maintenance – Where the father proposes a payment to the mother of $90,000 – Where the mother proposes a larger sum dependent on certain liabilities being given attributable values – Where the father’s loans are extant liabilities – s 75(2)(o) factors – Where the court satisfied the mother’s contribution based entitlement should be 20% – Order that the father pay the mother $125,342.85 – Order that the father pay the mother spousal maintenance of $250.00 per week for 6 months.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343
Zahawi & Rayne [2016] FamCAFC 90
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
U v U (2002) FLC 93-112
AMS v AIF; AIF v AMS (1999) FLC 92-852
T & N [2001] FMCAfam 222

APPLICANT:

Ms Irvine

RESPONDENT:

Mr Irvine

INDEPENDENT CHILDREN’S LAWYER:

Mr Newman

FILE NUMBER:

TVC

1322

2017

DATE DELIVERED:

6 September 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

27, 28 29, 30 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITORS FOR THE APPLICANT:

Spina Kyle Waldon

COUNSEL FOR THE RESPONDENT:

Ms Oakley

SOLICITORS FOR THE RESPONDENT:

BJM Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Mr Fellows

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Newman Family Law

Orders

PARENTING

All previous parenting orders be discharged.
The parents have equal shared parental responsibility for the child X born … 2016 (‘the child’).

As of the commencement of school term 1, 2023 the child shall live with the Mother and the Father on an equal time basis, being for a period of 7 consecutive days in each fortnight with each parent commencing after school on a Friday.
Prior to the commencement of equal time provided for in order 2 herein, the child shall live with Mother and spend time with the Father as follows;
(a)In…

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 IRVINE & IRVINE

Details

AGLC: IRVINE & IRVINE [2019] FamCA 627
Case: [2019] FamCA 627
Decision Date: 6 September 2019

CaseChat Overview and Summary

In the matter of *Irvine & Irvine*, Tree J considered applications by the mother for relocation of the child and by both parties concerning property settlement and spousal maintenance. The mother sought to relocate with the child from Town A to Town B, a proposal the court found to be reasonably practicable for the mother to undertake, but not for the father. The father opposed the relocation, asserting the mother's inability to co-parent without his assistance due to mental health issues, a claim unsupported by evidence. The court also addressed the division of property and the father's proposal for spousal maintenance.

The primary legal issues before the court were whether to permit the mother's proposed relocation of the child, the appropriate orders for equal shared parental responsibility and the child's living arrangements, and the division of the parties' property, including the quantum of spousal maintenance. The court was required to consider the best interests of the child in determining the parenting orders and to apply the relevant provisions of the *Family Law Act 1975* (Cth) to the property and maintenance claims.

Tree J determined that relocation was not in the child's best interests, finding it reasonably practicable for the mother to remain in Town A. Consequently, the court ordered equal shared parental responsibility and established a phased approach to the child's living arrangements, ultimately leading to equal time with both parents. The court also ordered that the child spend six months living in Germany, subject to specific conditions. In relation to property, the court found the mother's contribution-based entitlement to be 20% and ordered the father to pay the mother $125,342.85. Additionally, the father was ordered to pay the mother spousal maintenance of $250.00 per week for six months.

Orders

Orders of the court

PARENTING

All previous parenting orders be discharged.

The parents have equal shared parental responsibility for the child X born … 2016 (‘the child’).

As of the commencement of school term 1, 2023 the child shall live with the Mother and the Father on an equal time basis, being for a period of 7 consecutive days in each fortnight with each parent commencing after school on a Friday.

Prior to the commencement of equal time provided for in order 2 herein, the child shall live with Mother and spend time with the Father as follows;

(a) In 2019;

i. In each fortnight from 10am Saturday until 5pm Sunday in week 1;

ii. 10am Sunday until 7pm Monday in week 2;

iii. In each week from 3pm Wednesday until 7pm Thursday; and

iv. Upon the Father providing the Mother with 60 days written notice, for 7 consecutive days

(b) Commencing as at 1 February 2020;

i. In each fortnight from 10am Saturday until 5pm Sunday in week 1;

ii. 10am Sunday until 7pm Tuesday in week 2;

iii. In each week from 3pm Wednesday until 7pm Thursday; and

iv. Upon the Father providing the Mother with 60 days written notice, for 2 periods of 7 consecutive days.

i. In each fortnight from 3pm Friday until 9am Tuesday;

ii. In each week from 3pm Wednesday until 7pm Thursday; and

iii. Upon the Father providing the Mother with 60 days written notice, for 3 periods of 7 consecutive days.

(d) Commencing as at 1 February 2022;

i. In each fortnight from 3pm Friday until 9am Thursday;

That commencing in 2022, the child shall live with each of her parents as follows;

(a) during each shorter school holiday period on an equal time basis being for a period of 7 consecutive days in each fortnight with each parent commencing 5pm Friday and;

(b) During each December/January school holiday period with the Father for the first half of each school holiday period falling in even numbered years and the second half of each school holiday period falling in ending in odd numbered years.

The Mother shall be at liberty to travel to Germany with the child in each second calendar year for a period of up to 7 consecutive weeks on the following conditions;

(a) The Mother to provide the Father with 60 days written notice of the dates upon which she intends to travel (‘the German holiday’);

(b) The Mother to provide the Father with a copy of the child’s travel itinerary and tickets;

(d) The Mother to provide the Father with the child’s contact details for the duration of the travel;

(e) The Mother to ensure the child has Facetime/Messenger/Skype or similar communication with the Father at least twice each week and in the absence of agreement on Tuesday and Friday;

(f) The German holiday may only occur in the December/January Queensland gazetted school holiday period in each alternate year and shall not occur during the first half of the December/January school holiday period in years ending in an even number,

(g) The Father to be entitled to nominate 2 additional periods of 14 consecutive days for the child to spend with him in the period prior to the child’s travel or in the 9 months following the child’s travel, provided those times do not consecutively join other school holiday periods provided for in these orders.

The child shall have telephone/Facetime/Skype or similar means of communication with the Father at all reasonable times on at least 2 occasions each week.

That the mother may spend one period of extended time with the child in Germany on the following conditions:-

(a) No later than 30 June 2020 the mother may notify the father of her intention to enrol the child for a period of preparatory schooling in Germany that does not exceed 6 months duration from the time of departure from Australia to the time of return to Australia.

(b) The mother is to provide the father with a copy of the child’s travel itinerary and tickets.

(d) The mother is to provide the father with the child’s contact details for the duration of that period.

(e) The mother is to ensure the child has Facetime/Messenger/Skype or similar communication with the father twice a week and in the absence of the agreement on Tuesday and Friday.

(f) If the father elects to travel to Germany during this period, then for such periods as he may be in Germany, he shall give to the mother not less than 14 days written notice of his arrival and the place or places where he will be living.

(g) When the father is in Germany, he may spend such time with the child as may be agreed between the parents in writing, but no less than a period of 3 days in each week from Thursday afternoon at 4:00pm to Sunday morning at 9:00am provided that on days when the child is attending school he ensures that the child is delivered to or picked up from school on Thursday or Friday as the case may require.

(h) If the period of time that the father spends in Germany incorporates a period of school holiday time, then the child shall spend one-half of that period with the father.

(i) If the mother elects to implement this order, then in the year that she does so, she shall not also spend time with the child in Germany in accordance with order 6.

The parties advise each other of any changes of telephone number, or residential address within 24 hours of such change occurring.

10. The parties communicate about matters relating to the child using the online communication book “Talking parents”. The communication book should detail issues about the child, such as:

(a) Any school events;

(b) Any medical issues;

(d) Celebrations;

(e) Photographs; and

(f) General parenting updates.

11. The parties not criticise or denigrate the other party or the other parties’ family in the presence of, or within the hearing of the child.

12. These orders shall, without more, act as authority to the child’s schools to provide each parent (at that parent’s expense) information about the child’s education’s progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided to parents.

13. These orders shall, without more, act as authority to each of the child’s medical practitioners (including counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the child’s medical condition, treatment and copies of medical records and reports.

14. The parties will ensure that the schools attended by the child, and the child’s usual treating medical practitioners (including counsellors and psychologists) are provided with a copy of these orders.

15. The Independent Children’s Lawyer is discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

PROPERTY AND MAINTENANCE

16. Pursuant to s 79, father is to pay to the mother the sum of $125,342.85 within 3 calendar months.

17. Otherwise each party are to retain the property presently in their names, or in their possession, and remain solely liable for any debts in their name.

18. Until 6 March 2020, the father is to pay the mother the sum of $250.00 per week by way of spouse maintenance.

OTHER ORDERS

19. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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