Kamenski & Kamenska - [2022] FedCFamC2F 17

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kamenski & Kamenska [2022] FedCFamC2F 17

File number(s): MLC 3895 of 2020

Judgment of: JUDGE HARLAND

Date of judgment: 17 January 2022

Catchwords: FAMILY LAW – Parenting – allegations of family violence – mother’s ability to facilitates children’s relationship with the children – whether or not there should be a self-executing order for change of residence – property adjustment – weight to be given to father’s initial contributions and contributions from his family – whether or not there should be a contribution due to family violence – what s.75(2) adjustment should be made – s.75(2) factors.

Legislation: Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), pts.VII, VIII, ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA, 67Z, 75(2), 79, 90SM, 90XT, 90XZA
Family Law (Superannuation) Regulations 2001 (Cth), Pt.6, rr.12, 13

Cases cited: Baranski v Baranski and Anor (2012) 259 FLR 122
Benson & Drury [2020] FamCAFC 303
Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
H and H (2005) FLC 93-209
Kennon & Kennon 22 Fam LR 1
Maine v Maine (2016) 56 Fam LR 500
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Pellegrino & Pellegrino [1997] FamCA 52
S & S [2003] FamCA 905
Stanford v Stanford (2012) 247 CLR 108
S and S (2005) FLC 93-246
Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Number of paragraphs: 221

Date of last submission/s: 24 November 2021

Date of hearing: 22, 23 and 24 November 2021

Place: Melbourne

Counsel for the Applicant Mr Williams

Solicitor for the Applicant Aberdeen Lawyers

Counsel for the Respondent Mr Howe

Solicitor for the Respondent Swiftly Legal

Counsel for the Independent Children’s Lawyer Mr Radich

Solicitor for the Independent Children’s Lawyer Hartleys Lawyers
ORDERS

MLC 3895 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KAMENSKI

Applicant

AND:
MS KAMENSKA

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

17 JANUARY 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the children X born in 2008 and Y born in 2009 (“the children”).
3.The child X live with and spend time with both parents in accordance with her wishes.
4.During school terms, the child Y live with the parents as follows:
Week 1
(a)With the applicant father from the conclusion of school Friday or 9.00am if a non-school day, until the commencement of school the following Thursday or 9.00am if a non-school day.

Week 2
(b)With the respondent mother from the conclusion of school Thursday or 9.00am if a non-school day, until the commencement of school the following Friday, or 9.00am if a non-school day.

5.During the school holidays, the child Y live with the parents as follows:
(a)During all school term holidays on a week about basis as follows:

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 Kamenski & Kamenska

Details

AGLC: Kamenski & Kamenska [2022] FedCFamC2F 17
Case: [2022] FedCFamC2F 17
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with parenting and property matters in Kamenski & Kamenska. The parties had been married for 18 years and separated in 2020. The wife alleged that the husband had subjected her and the children to family violence. The husband denied this and claimed the wife had subjected the children to family violence. The wife alleged that the husband had gambled away money and was in debt. The husband denied this. The wife claimed the husband’s family had made significant contributions to their relationship. The husband denied this. The husband claimed that the wife had received significant inheritance and financial contributions from her family. The wife denied this. The court found that there were incidents of family violence and that the children had been exposed to the violence. The court found that the husband had made significant financial contributions to the relationship and that the wife’s claims about family violence did not support a finding that her contributions had been significantly more arduous than they ought to have been. The court found that the husband should retain the former matrimonial home and that it was just and equitable to make a property adjustment in favour of the wife of 10% of the non-superannuation assets. The court found that it was in the children’s best interests for the parents to have equal shared parental responsibility. The court found that the younger child should spend six nights a fortnight during school terms with the father and the remaining nights with the mother. The court found that if the mother did not comply with this order, there would be further litigation.

Orders