Kedis & Kedis - [2013] FCCA 1959

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEDIS & KEDIS

[2013] FCCA 1959

Catchwords:
FAMILY LAW – Property and parenting orders – wife primary caregiver – family violence – high level of conflict between parties – husband’s continuing abuse and denigration of wife – wife unable to live with children in independent accommodation – husband’s lack of insight – children to live with wife – wife to have sole parental responsibility – children to spend time with husband at contact centre – husband effective control of both real properties – husband’s non-compliance with orders – damage caused to both properties by husband – apportionment 70 per cent to wife – sale of investment property ordered – wife retain former matrimonial home – just and equitable in all circumstances – husband’s oppressive and vexatious conduct – anti-suit injunction ordered.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DA(2)(b), 61DA(4), 62G, 75(2), 106A, 114(3)

Lederer v Hunt (2007) FLC 93-31
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Applicant:

MS KEDIS

Respondent:

MR KEDIS

File Number:

MLC 2787 of 2013

Judgment of:

Judge Hartnett

Hearing dates:

13, 14, 15 & 19 November 2013

Delivered at:

Melbourne

Delivered on:

29 November 2013

REPRESENTATION

Counsel for the Applicant:

Ms Teicher

Solicitors for the Applicant:

Jeanne Gorman Barrister and Solicitor

The Respondent:

In Person

Counsel for the Independent Children's Lawyer:

Ms Dowler

Solicitors for the Independent Children's Lawyer:

Cathleen Corridon & Associates

THE COURT ORDERS THAT:

Parenting Orders

All previous parenting orders are hereby discharged.
The children of the marriage X born on (omitted) 2004 and Y born on (omitted) 2008 (‘the children’) live with the wife and she have sole parental responsibility with respect to the children.
The children spend time with the husband each alternate weekend for two hours at the Berry Street Contact Centre Service in (omitted) at times and dates as nominated by the Service. The parties to do all acts and things necessary to secure enrolment at the service, including but not limited to completion of application forms and attendance for interviews.
The husband shall be responsible for any fees payable to the Berry Street Contact Centre Service.
The wife facilitate the children telephoning the husband each Tuesday at 7.00pm and the wife be at liberty to monitor such calls and terminate them in the event that the husband discusses these proceedings with the children and/or denigrates the wife and/or her family to the children or either of them.
Each of the parties be and are hereby restrained from discussing these proceedings in the presence and/or hearing of the children or either of them and are further restrained from allowing any other person to do so.
The husband attend and complete the following courses:-
(a)a Parenting Orders Program; and
(b)a Men’s Behaviour Change program with the “(omitted) Program”.
The wife attend and complete a Parenting Orders Program.
The appointment of the Independent Children’s Lawyer be discharged.

Property Orders

Pursuant to s.114(3) of the Family Law Act

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 Kedis & Kedis

Details

AGLC: KEDIS & KEDIS [2013] FCCA 1959
Case: [2013] FCCA 1959
Decision Date: 29 November 2013

CaseChat Overview and Summary

In the matter of *Kedis & Kedis*, heard by Judge Hartnett, the court was asked to determine parenting and property orders concerning the parties' children, X and Y, and their shared assets. The dispute involved the wife seeking sole parental responsibility for the children and specific arrangements for their time with the husband, as well as the division of their former matrimonial home and an investment property.

The court was required to determine the appropriate parenting arrangements for the children, including the extent of the husband's time with them and the conditions under which such time would occur. Furthermore, the court had to address the division of the parties' real estate, including the former matrimonial home and an investment property, and the allocation of associated debts and costs. The court also considered the husband's involvement in separate civil proceedings and the wife's costs in those proceedings.

Judge Hartnett ordered that all previous parenting orders be discharged and that the children live with the wife, who would have sole parental responsibility. The husband was granted limited, supervised time with the children each alternate weekend at a contact centre, with the wife having the liberty to monitor and terminate calls if the husband discussed the proceedings or denigrated the wife. Both parties were restrained from discussing the proceedings in the children's presence. The husband was ordered to attend parenting and men's behaviour change programs, and the wife was ordered to attend a parenting program. In relation to property, the husband was restrained from further steps in separate Magistrates' Court proceedings, other than discontinuing them. He was ordered to vacate the former matrimonial home and an investment property and deliver the keys. The husband was to transfer his interest in the former matrimonial home to the wife and the investment property was to be sold, with the proceeds applied first to sale costs, then to a mortgage, then to moneys due to the wife, and finally to outstanding rates and liabilities before any balance was paid to the husband. The husband was ordered to pay the wife costs incurred in the Magistrates' Court proceedings and a sum for property settlement. Specific chattels were to be retained by the wife, with each party otherwise retaining items in their possession and their superannuation interests. The court noted that the husband could apply for further orders regarding time with the children if he complied with specific conditions, including program completion and participation in supervised time.

Orders

Orders of the court

Parenting Orders

All previous parenting orders are hereby discharged.

The children of the marriage X born on (omitted) 2004 and Y born on (omitted) 2008 (‘the children’) live with the wife and she have sole parental responsibility with respect to the children.

The children spend time with the husband each alternate weekend for two hours at the Berry Street Contact Centre Service in (omitted) at times and dates as nominated by the Service. The parties to do all acts and things necessary to secure enrolment at the service, including but not limited to completion of application forms and attendance for interviews.

The husband shall be responsible for any fees payable to the Berry Street Contact Centre Service.

The wife facilitate the children telephoning the husband each Tuesday at 7.00pm and the wife be at liberty to monitor such calls and terminate them in the event that the husband discusses these proceedings with the children and/or denigrates the wife and/or her family to the children or either of them.

Each of the parties be and are hereby restrained from discussing these proceedings in the presence and/or hearing of the children or either of them and are further restrained from allowing any other person to do so.

The husband attend and complete the following courses:-

(a) a Parenting Orders Program; and

(b) a Men’s Behaviour Change program with the “(omitted) Program”.

The wife attend and complete a Parenting Orders Program.

The appointment of the Independent Children’s Lawyer be discharged.

Property Orders

10.

Pursuant to s.114(3) of the Family Law Act 1975 (Cth), the husband is restrained from taking any further steps in proceeding number (omitted) in the Magistrates’ Court of Victoria at Dandenong, other than discontinuing that proceeding.

11.

The husband vacate the real properties situate at and known as Property H in the State of Victoria being the whole of the land more particularly described in Certificate of Title with title reference Volume (omitted), Folio (omitted) (‘the former matrimonial home’) and Property M in the State of Victoria being the whole of the land more particularly described in Certificate of Title with title reference Volume (omitted), Folio (omitted) (‘the investment property’) on or before 3 December 2013.

12.

The husband deliver all keys to the former matrimonial home and the investment property to a Registrar of the Federal Circuit Court of Australia by 4.00pm on 3 December 2013. The husband obtain a written acknowledgement in respect thereto. Thereafter such keys shall be made available to the wife’s solicitors for handing over to the wife.

13.

The husband transfer to the wife, at the expense of the wife, the whole of his right, title and interest in the former matrimonial home such that the wife shall become the sole registered proprietor of the real property situate at and known as Property H in the State of Victoria being the whole of the land more particularly described in Certificate of Title with title reference Volume (omitted), Folio (omitted).

14.

Order 12 of the Orders made 10 May 2013 is discharged.

15.

Forthwith the investment property be placed on the market for sale, with the wife to have sole authority and control of the sale and the proceeds derived from the sale be applied as follows:-

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

(b) secondly, to discharge the registered mortgage to the (omitted) Bank, mortgage number (omitted);

(d) fourthly, the payment of monies due pursuant to order 17 herein; and

(e) fifthly, the balance then remaining to the husband save that such monies are not to be paid out to the husband for a period of 60 days from receipt of such funds so that in the event the husband causes any further damage to the real properties on either of them and/or incurs any further unnecessary legal costs to the wife, the wife is at liberty to make application for a payment of restitution and/or compensation by the husband.

16.

Pursuant to s.106A of the Family Law Act 1975 (Cth), a Registrar of this Court is appointed to execute all necessary documents in the name of the husband to give validity and operation to effect a sale of the investment property on behalf of the husband including signing an appointment of real estate agent.

17.

The husband be liable for the payment of all outstanding rates in respect of the former matrimonial home and the investment property, together with all outstanding liabilities in respect of gas, electricity and water usage which shall be paid out of the proceeds of sale obtained on the sale of the investment property and before payment out of any sum to the husband.

18.

The husband pay to the wife an amount of $3,142 in respect of the costs incurred by her in the civil proceedings in the Magistrates’ Court of Victoria at Dandenong.

19.

The husband pay to the wife the sum of $17,713 by way of property settlement in addition to the transfer of the former matrimonial home.

20.

The husband make available to the wife by leaving in the former matrimonial home the following items of furniture and chattels, which are to become the sole property of the wife absolutely:-

(a) kitchen utensils;

(b) the washing machine;

(d) Christening boxes;

(e) one television set;

(f) four rugs;

(g) bed linen; and

(h) all of the parties’ photo albums in relation to which the wife will provide copies of photographs to the husband as requested in writing by the husband of her.

21.

Each party retain otherwise those items of furniture and chattels in their respective possession, and each is to retain their respective interest in their superannuation funds without claim upon same by the other.

22.

Liberty to apply on short notice with respect to the sale of the investment property and/or enforcement of these Orders.

23.

Otherwise all extent applications are dismissed and the matter removed from the pending list of cases.

AND THE COURT NOTES THAT:

In the event the husband:-

(a) complies with paragraph 7 of these Orders and has obtained certificates of attendance and completion of the courses referred to therein, and

(b) has participated in no less than 24 periods of supervised time spent with the children pursuant to order 3 hereof, and

(c) has obtained a report from the Berry Street Contact Centre Service in (omitted) with respect to the time he has spent with the children;

then the husband shall be at liberty to make application to this Court seeking further orders with respect to the time the children are to spend with him and the conditions, if any, with respect to that time.

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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