FAMILY COURT OF AUSTRALIA
| KEEGAN & HART | [2007] FamCA 111 |
| FAMILY LAW - CHILDREN – Child suffering from Cystic Fibrosis – Management of treatment regime – Father experiencing some difficulty ensuring the child’s timely arrival at school FAMILY LAW - PROPERTY – Constitution of property pool for division - Inclusion of moneys drawn at separation – Treatment of redundancy payment FAMILY LAW - PROPERTY – s 75(2) Factors – Wife’s significant earning capacity balanced with her greater responsibility for the care of the child of the marriage and the special needs of the child |
| Goode and Goode [2006] FamCA 1346 Hickey and Hickey (2003) FLC 93-143 |
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 75, 79
| APPLICANT: | Ms Keegan |
| RESPONDENT: | Mr Hart |
| FILE NUMBER: | MLF | 1035 | of | 2005 |
| DATE DELIVERED: | 1 March 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bryant CJ |
| HEARING DATE: | 26 and 27 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wilson |
| SOLICITOR FOR THE APPLICANT: | Michael Maplestone Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Ramsey |
| SOLICITOR FOR THE RESPONDENT: | Pearsons Barristers & Solicitors |
ORDERS
That the parties have equal shared parental responsibility for major long-term issues concerning the child, a daughter, born in February 1999 (“the child”).
That the child live with the wife and the wife have sole responsibility for the child’s day-to-day care, welfare and development save when she is spending time with the husband.
That the child spend time with the husband as follows:
a.Each alternate weekend during school terms as follows:
i.From after school on Friday until 5.00pm on Sunday or until 5.00pm on Monday where Monday is not a school day;
ii.If the husband lives within 5 kilometres of the child’s school alternate weekend time in (i) be extended to return to school on Monday, or Tuesday where Monday is not a school day;
iii.The wife notify the husband at least 7 days prior to the recommencement of each new school term of whether the alternate weekends will recommence on the first or second weekend of term and the husband spend time with the child each alternate weekend on and after the weekend notified by the wife as the recommencing weekend, PROVIDED ALWAYS that if the husband did not spend time with the child on the last weekend of the previous term and the wife nominates the second weekend as the recommencing weekend of the new term, the husband spend time with her on another weekend of the new term nominated by the wife upon at least 28 days prior notice to the husband, being a weekend additional to the pattern of alternate weekends notified by the wife for that term;
b.Each alternate Thursday during school terms being the Thursday after an alternate weekend pursuant to (a) as follows:
i.From after school until the commencement of school on Friday provided that the child is not late to school on more than two occasions per term whilst in the Husband’s care;
ii.In the event that the child is late for school while in…
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CaseChat Overview and Summary
The court was required to determine the most appropriate parenting orders for the child, specifically addressing issues of parental responsibility, living arrangements, and time spent with each parent, taking into account the child's medical condition and the father's challenges with school punctuality. In relation to property, the court needed to decide how to divide the parties' assets, including the jointly owned real property and other financial resources, and to consider the impact of various factors on the final property settlement.
The court made orders for equal shared parental responsibility for major long-term issues concerning the child, with the child to live with the wife and have sole responsibility for her day-to-day care, welfare, and development, save when spending time with the husband. Specific detailed orders were made regarding the child's time with the husband, including alternate weekends and Thursdays during school terms, with provisions for lateness to school impacting the husband's time. The court also made detailed orders for the division of the jointly owned real property, including its sale, the application of proceeds, and the husband's sole right of occupation pending settlement. Further orders addressed the division of contents, personal items, and other property, with each party to be solely entitled to property in their possession, and a severing of any joint tenancies.
Orders
Orders of the court
1.
That the parties have equal shared parental responsibility for major long-term issues concerning the child, a daughter, born in February 1999 (“the child”).
2.
That the child live with the wife and the wife have sole responsibility for the child’s day-to-day care, welfare and development save when she is spending time with the husband.
3.
That the child spend time with the husband as follows:
a. Each alternate weekend during school terms as follows:
i. From after school on Friday until 5.00pm on Sunday or until 5.00pm on Monday where Monday is not a school day;
ii. If the husband lives within 5 kilometres of the child’s school alternate weekend time in (i) be extended to return to school on Monday, or Tuesday where Monday is not a school day;
iii. The wife notify the husband at least 7 days prior to the recommencement of each new school term of whether the alternate weekends will recommence on the first or second weekend of term and the husband spend time with the child each alternate weekend on and after the weekend notified by the wife as the recommencing weekend, PROVIDED ALWAYS that if the husband did not spend time with the child on the last weekend of the previous term and the wife nominates the second weekend as the recommencing weekend of the new term, the husband spend time with her on another weekend of the new term nominated by the wife upon at least 28 days prior notice to the husband, being a weekend additional to the pattern of alternate weekends notified by the wife for that term;
b. Each alternate Thursday during school terms being the Thursday after an alternate weekend pursuant to (a) as follows:
i. From after school until the commencement of school on Friday provided that the child is not late to school on more than two occasions per term whilst in the Husband’s care;
ii. In the event that the child is late for school while in the husband’s care, on more than two (2) occasions in a term then the time spend by the child with the husband in Order 3(b)(ii) be suspended for the balance of the school term in which it occurs and for the following school term.
iii. During the period of suspension the child spend time with the husband each alternate Thursday from after school to 7:30pm.
c. From 5.00pm on the Saturday preceding Father’s Day until 5.00pm on Father’s Day;
d. From 3.00pm on 25 December to 5.00pm on 31 December commencing December 2007 and alternate years thereafter with a further week in the summer holidays at a time nominated by the husband and to coincide if possible with a week when Mr S does not have his children, and in default of any nomination within one month of the commencement of the holidays, the week nominated by the wife upon at least 28 days prior notice to the husband but no earlier then 27 December.
e. From 3.00pm on 24 December to 3.00pm on 25 December commencing December 2008 and alternate years thereafter with a further two separate weeks in summer holidays one to commence on 27 December and the other to be nominated by the husband and to coincide if possible with a week when Mr S does not have his children, and in default of any nomination within one month of the commencement of the holidays, the week nominated by the wife upon at least 28 days prior notice to the husband but no earlier than 27 December.
f. For one week during term 1 and 3 school holiday periods at times to be agreed, in default of agreement the week nominated by the wife upon at least 28 days prior notice to the husband; and
g. At any other times as agreed between the parties.
4.
At least 28 days prior to the commencement of the summer holiday period, the wife nominate two weeks during the summer holidays as her exclusive time with the child during which time the provisions of Order 3 be suspended but for the balance of the Summer holidays (after taking into account the parent’s exclusive four weeks) the time spent with the husband on alternate weekends and intervening Thursdays continue.
5.
That in the event that Mother’s Day falls on a weekend of the child spending time with the husband, the child be returned to the wife at 5.00pm on the Saturday of that weekend.
6.
That if the child’s birthday or the husband’s birthday falls on a weekday that the child is not spending with the husband, the husband have liberty to telephone the child at 6.00pm and in the event that she is unavailable at that time the wife arrange for her to telephone the husband as soon as practicable thereafter.
7.
That if the child’s birthday or the husband’s birthday falls on a weekend that the child is not spending with the husband, the child spend time with the husband as follows:
a. If the relevant birthday falls on a Saturday of a school term weekend – from after school on Friday until 1.00pm on Saturday; or
b. If the relevant birthday falls on a Sunday of a school term weekend – from 1.00pm until 5.00pm on that day.
8.
That if the child’s birthday or the wife’s birthday falls on a weekend that the child is spending with the husband, such time will be suspended and the child will be with the wife:
a. If the relevant birthday falls on a Saturday – until 1.00pm on Saturday; or
b. If the relevant birthday falls on a Sunday – from 1.00pm until 5.00pm on that day.
9.
That handovers for the purposes of these orders take place at the child’s Primary School where a period commences or concludes at school time, otherwise at McDonalds restaurant in B or such other place as the parties may agree in writing.
10.
That the husband have liberty to communicate with the child by telephone at 6.00pm every third day when the child is living with the wife and in the event that she is unavailable at that time the wife arrange for her to telephone the husband as soon as practicable thereafter.
11.
That the wife have liberty to telephone the child at 6.00pm every third day when the child is spending time with the husband and in the event that she is unavailable at that time the husband arrange for the child to telephone the wife as soon as practicable thereafter.
12.
That each party forthwith inform and keep the other informed in the event that the child requires medical attention whilst in their respective care.
13.
That the husband do all such acts and things necessary to:
a. Comply with any treatment prescribed or recommended by the child’s medical practitioners for assessment or treatment as advised by the wife to the husband; and
b. Facilitate the child’s attendance at her extra-curricular activities including but not limited to musical lessons, swimming lessons and gymnastic activities if practicable.
14.
That the husband be at liberty to attend extra-curricular activities that fall on periods when the child is not living with him and that the wife give him 21 days written notice of any special events associated with her activities.
15.
That the wife be at liberty to take the child for an overseas holiday during 2008 for a period of 3 to 4 weeks and the child’s time spent with the husband be suspended for such period with the time missed to be made up as far as practicable.
16.
That the husband sign all documents and do all things necessary to facilitate the issue of a passport to the child in order to give effect to paragraph 15 herein.
17.
That compliance with the parenting orders be supervised by a Family Consultant of the Melbourne Registry pursuant to s 65L of the Family Law Act 1975 (Cth) for a period of twelve months.
18.
That the husband and wife attend whatever parenting course or courses as recommended by the supervising Family Consultant appointed pursuant to paragraph 17 herein to assist in improving communication between them.
PROPERTY ORDERS
18.
That within seven days of this day each party sign an authority to engage a conveyancing solicitor, and failing agreement Mr L, to prepare a vendor’s statement (Section 32) for the sale of the jointly-owned property at E (“the real property”)
19.
That within seven days of any request from the conveyancing solicitor, each party provide necessary documents for the preparation of the vendor’s statement (Section 32).
20.
That each party do all things required to pay up to $4,330 from the parties’ joint Commonwealth Bank Award Saver account towards works (including but not limited to external painting, exterior cleaning and rubbish removal) in preparing the property E for sale as recommended by the selling agents.
21.
That within seven days of the completion of the vendor’s statement (Section 32), each party sign all documents to put the jointly-owned property at E on the market for sale on terms and conditions as may be agreed and failing agreement as recommended by the selling agents with the following additional terms and conditions:
a. For sale by auction, with the auction to take place within 28 days or, if recommended by the selling agent, by private sale prior to that date;
b. The selling agent be A Pty Ltd;
c. The reserve price be as nominated by the selling agent or a reduced reserve price as agreed between the parties;
d. The terms of settlement of the sale be 60 days or as otherwise agreed; and
e. The agent’s Exclusive Authority Period be 30 days after the auction date.
22.
That the proceeds of sale be applied:
a. Firstly in payment of all selling expenses including vendor’s statement, agent’s commission and advertising;
b. Secondly in discharge of the mortgage to Commonwealth Bank of Australia and any other encumbrance affecting the real property.
c. Thirdly, in payment to the wife of:
i. 55% of the balance;
ii. The sum of $22,260;
d. Fourthly, the balance remaining thereafter to the husband.
23.
That liberty be reserve to either party to apply with respect to the terms, conditions and execution of the sale.
24.
That pending settlement of the sale of E property the husband provide reasonable access to the real property to tradesmen, the selling agent and prospective purchasers.
25.
That pending settlement of the sale of E property the wife and/or her nominated parties be provided reasonable access to the real property for the purpose of preparing the property for the sale.
26.
That pending settlement of the sale of the property, the husband have the sole right to occupy the real property and that during such right of occupation:
a. Unless otherwise agreed between the parties, the husband pay from his own bank account the following:
1. Council and water rates, home and contents insurance as they become due;
2. A garden maintenance company on at least a three-weekly basis;
3. Mortgage instalments as they fall due; and
4. A cleaning company on a weekly basis for the cleaning of all internal living areas of the house;
b. The parties hold their respective interests in the real property upon trust pursuant to these orders.
c. Neither party encumber the real property without the consent in writing of the other party.
27.
That within 14 days of the signing of the contract of sale or by 30 April 2007 whichever comes first, the husband provides access to the wife and/or her nominated parties to E property for the purposes of dividing contents.
28.
That within 14 days of the signing of the contract of sale or by 30 April 2007 whichever comes first, the furniture and other contents in E property be divided by the parties on a “pick by pick” basis from a list prepared by them.
29.
That within seven days the husband provides to the wife her personal items and all furniture belonging to her parents from E property.
30.
That the wife transfer to the husband her interest in money standing to the credit of the parties in their joint bank account.
31.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
a. Each party be solely entitlement to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the husband, save as provided in paragraph 28 to 30;
b. Each party forego any claims they may have to any superannuation benefits belonging to or earning by the other;
c. Insurance policies remain the sole property of the beneficiary named therein;
d. Each party be solely liable for and indemnify the other against any liability encumbering any items of property to which that party is entitled pursuant to these orders; and
e. Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
32.
That all outstanding applications otherwise be dismissed.
33.
That pursuant to s 65A(2) and s 62B of the Family Law Act 1975 (Cth), 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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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