FAMILY COURT OF AUSTRALIA
| KARLLSSON & KARLLSSON | [2018] FamCA 305 |
| FAMILY LAW – CHILDREN – Final Orders - Where the parties have two children – Where the mother’s leave to amend her application for parenting orders was dismissed – Where the mothers leave to amend her application in in relation to parental responsibility dismissed – Where leave for the wife to rely upon the expert report of Dr MM is refused – Where Mr D is the single expert in relation to the parenting issues prepared four reports – Where children found to benefit from an ongoing continuing meaningful relationship with both parents – Where there is no need to protect the children from abuse, neglect or family violence from the parents – Where B’s wish to spend more time with her mother not be taken at face value – Where Mr D raised the suggestion of a creative solution – Where children currently spend substantial and significant time with both parties – Where both parties found to offer high quality but different parenting styles – Where there exists ongoing conflict between the mother and farther – Where the father found unlikely to desist form litigation in relation to parenting matters until he achieves his desired outcome of equal time arrangement– Where equal shared parental responsibility ordered for the children – Where a week about arrangement ordered after 12 months with the precursor of the creative solution as recommended by Mr D – Where an order is not made for the mother to be at liberty to obtain assessment of B for a condition. FAMILY LAW – PROPERTY – Final Orders – Where the husband and the husband’s mother are owners of a commercial enterprise – Where Mr M was the single expert in relation to the issue of valuation of the husband’s interests – Where it is just and equitable to make orders for the alteration of property interest – Where husband and wife disputed over the total net value of the asset pool – Where it was accepted that the husband’s loan from his mother is a liability as the mother has a legal right to call for repayment – Where accordingly the loan is included in the list of liabilities – Where the husband’s shares in NIPL were found to have nil value given the husbands mothers legal rights and powers vested in her by the Life Governors shares – Where the husbands asset distributions were not added back to the list of assets – Where the wife’s submission as to the inclusion of the discount applied by Mr M for illiquidity and lack of control are rejected – Where the whole sum of $1,670,000 the wife received as partial property settlements be regarded as her asset – Where the husband’s paid legal fees are not included as an asset – Where the net pool of property is found to have a value of $49,750,689 – Where the contributions of the wife assessed at 15 per cent… |
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- AGLC
- Karllsson & Karllsson [2018] FamCA 305
- Case
- [2018] FamCA 305
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the determination of parenting arrangements for the children, considering their wishes and the need to protect them from abuse, neglect, or family violence. The court was also required to determine the just and equitable alteration of property interests between the parties, including the valuation of the husband's interest in a commercial enterprise and the dispute over the total net value of the asset pool. The wife's application for spouse maintenance was also a key issue.
Stevenson J found that the children benefited from a continuing meaningful relationship with both parents and that there was no need for protection from abuse or violence. While B expressed a wish to spend more time with her mother, this was not taken at face value. The court noted the children spent substantial time with both parents, who offered high-quality but different parenting styles, and acknowledged ongoing conflict between them. The father was found to be unlikely to cease litigation until he achieved his desired outcome of equal time. Consequently, the court ordered equal shared parental responsibility and a phased approach to living arrangements, commencing with a creative solution suggested by the single expert, leading to a week-about arrangement after 12 months. Regarding property, the court accepted the husband's loan from his mother as a liability and found the husband's shares in NIPL to have nil value. After calculating the net pool of property at $49,750,689, the wife's contributions were assessed at 15%, with an additional 8% adjustment in her favour under s75(2) factors, resulting in a division of 23% to the wife and 77% to the husband. The wife's application for spouse maintenance was dismissed.
The court ordered that the husband pay the wife $9,694,100 within three months, discharging existing spouse maintenance orders upon full payment. All existing parenting orders were discharged, and new orders were made for equal shared parental responsibility and a staged living arrangement for the children over the next twelve months, transitioning to a week-about schedule thereafter. Specific provisions were made for holidays, birthdays, and communication between parents and children. The wife's application for spouse maintenance and child support departure orders were dismissed.
Orders
Orders of the court
Parenting
1.
All existing parenting orders in relation to the children:
(a) B born on … 2007 (“B”) and
(b) C born on … 2010 (“C”)
are discharged.
2.
The parties have equal shared parental responsibility for the children.
3.
For a period of twelve months from the date of these Orders, the children live with the father during school term time as follows:
(a) in Week 1 of a two-week cycle, commencing in the first week of the school term, from the conclusion of school on Thursday until the conclusion of school, or 3.30 pm if a non-school day, on the following Monday and
(b) in Week 2 of a two-week cycle, from the conclusion of school on Thursday, or 3.30 pm on a non-school day, until the conclusion of school, or 3.30 pm on a non-school day, on the following Friday
(c) B will spend the period from the conclusion of school, or 3.30 pm on a non-school day, on Friday until 9.00 am on the following Saturday with the father in Week 1 of the two-week cycle with the father and
(d) C will spend the period from the conclusion of school, or 3.30 pm on a non-school day, on Friday until 9.00 am on the following Saturday in Week 2 of the two-week cycle with the father
(e) the children otherwise live with the mother during school term time.
4.
At the expiration of such period of twelve months:
(a)
the children live with the father during school term time from the conclusion of school on Monday, or 3.30 pm if a non-school day, until the conclusion of school on the following Monday or 3.30 pm if a
non-school day
(b) otherwise the children live with the mother during school term time.
5.
(a) For one half of the terms 1, 2 and 3 school holidays (commencing at the conclusion of school on the last day of term and concluding at the commencement of school on the first day of term):
(i) if the children are living with the father on the last weekend of term, for the second half of the holidays and
(ii) if the children are living with the mother on the last weekend of the school term, for the first half
(b) otherwise the children live with the mother during the terms 1, 2 and 3 holidays.
6.
For one-half of the Christmas school holidays (commencing on the last day of term and concluding at the commencement of school on the first day of term) subject to Orders 7 and 10.
(a) if the children are living with the father on the last weekend of term, for the second half of the holidays and
(b) if the children are living with the mother on the last weekend of term, for the first half of the holidays
(c) otherwise the children live with the mother during the Christmas school holidays.
7.
(a) The children live with the mother from 10.00 am on 24 December until 10.00 am on 25 December in each year.
(b) The children live with the father from 10.00 am on 25 December until 4.00 pm on 26 December in each year.
8.
(a) The children live with the father at Orthodox Easter, subject to Order 7(b), from the conclusion of school on Friday or 3.30 pm on a non-school day until the commencement of school on Monday or 3.30 pm on a non-school day and
(b) for non-Orthodox Easter (including when Orthodox Easter and non-Orthodox Easter fall on the same weekend being a long weekend, commencing at the conclusion of school on Thursday and concluding at the commencement of school on Tuesday):
(i) from 5.00 pm on Friday until 5.00 pm on Saturday and
(ii) from 5.00 pm on Sunday until 5.00 pm on Monday.
9.
(a) The children live with the father from 4.00 pm on the Saturday preceding Father’s Day until the commencement of school on the following Monday.
(b) The children live with the mother from 4.00 pm on the Saturday preceding Mother’s Day until the commencement of school on the following Monday.
10.
(a) The parent who has care of B on her birthday is not required to retain the child in Adelaide on that day so as to enable the other parent to spend time with her.
(b) When B’s birthday falls on a day when she is in the care of the father, she will spend time with the mother from 2.00 pm until 8.00 pm.
(c) When B’s birthday falls on a day when she is in the care of the mother, she will spend time with the father from 2.00 pm until 8.00 pm.
11.
(a) When C’s birthday falls on a school day when he is in the care of the father, he will spend time with the mother from the conclusion of school until 7.00 pm and if a non-school day, he will spend time with the mother from 2.00 pm until 7.00 pm.
(b) When C’s birthday falls on a school day when he is in the care of the mother, he will spend time with the father from the conclusion of school until 7.00 pm and if a non-school day, he will spend time with the father from 2.00 pm until 7.00 pm.
12.
(a) Each parent is at liberty to communicate with the children by telephone, Skype and/or facetime between 5.00 pm and 6.00 pm when they are in the care of the other parent during school term time.
(b) The parent who has the care of the children will facilitate communication with the other parent as may be requested by a child from time to time.
13.
(a) The Mother is at liberty to continue to take B to mathematics tutoring with Ms Y.
(b) Both parties will facilitate the continuation of the children’s study of European languages.
14.
(a) Neither party will enrol the children in any extracurricular activity which will impact upon their time with the other party without the written consent of the other parent.
(b) Each of the parties will keep the other informed at all times of activities in which he or she has enrolled the children.
15.
The parties will effect handovers at the children’s school wherever possible and, otherwise by the father collecting the children from the home of the mother at the commencement of time with him and the mother collecting the children from the home of the mother at the commencement of time with her pursuant to these Orders, unless otherwise agreed in writing.
16.
Other than in the event of an emergency, the parties are restrained from taking the children or either of them to a practitioner other than:
(a) Dr R, the treating General Practitioner
(b) Dr L, the treating Urologist
(c) Dr A, the treating paediatrician
(d) Dr S, the children’s treating dentist
(e) Ms T, Psychologist
(f) Mr U, Psychologist
(g) Mr J, Occupational Therapist
(h) Ms V, Occupational Therapist
(i) General Medical Practitioners at W Medical Centre
(j) Dr X, Ear, Nose and Throat Specialist
(k) Ms Y, Tutor
(l) Professional Staff from “Z Program”.
17.
The parties are at liberty to vary the provisions of these Orders by agreement in writing from time to time.
Alteration of property interests, spouse maintenance and child support departure
18.
The husband will pay to the wife a sum of $9,694,100 within three calendar months of the date of these Orders.
19.
Otherwise each of the parties is declared to be solely entitled to all items of real and/or personal property and superannuation which are currently registered in his or her name or alternatively are currently in the possession or control of that party.
20.
The Orders for spouse maintenance made on 8 March 2013 will stand discharged on the date upon which payment is made in full by the husband to the wife in accordance with Order 18 hereof.
21.
The application of the wife for spouse maintenance is dismissed.
22.
The application of the wife for child support departure orders is dismissed.
23.
Otherwise all outstanding applications and responses are dismissed.
Notation
24.
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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