Keirn & Moxey - [2017] FamCA 487

FAMILY COURT OF AUSTRALIA

KEIRN & MOXY

[2017] FamCA 487

FAMILY LAW – PROPERTY – Application for an adjustment of property interests pursuant to s 79(2) – Where the parties had entered into an agreement pursuant to New Zealand law with respect to their assets – Where the wife has made a greater contribution to the asset pool by purchasing and maintaining a property in the UK – Where the parties also had a joint property in the UK – Where an asset by asset approach is deemed appropriate in considering the adjustment of property interests – Where the property held in the wife’s sole name in the UK is considered separate to the remainder of the asset pool – Where there is insufficient evidence to establish that the husband contributed funds to the marriage as asserted – Where $36,000 is set aside from the parties’ joint funds to establish a child care fund – Where the wife retains the UK property in her sole name and each party is entitled to 50 per cent of the remaining property pool.

FAMILY LAW – CHILDREN – SPEND TIME WITH – Where the father seeks equal shared time with the two children, aged seven and four – Where the mother opposes the husband’s application – Where the children have a loving and close relationship with both parents – Where the parents have agreed to equal shared parental responsibility and orders in relation to other aspects of the care of the children – Consideration of s 60CC factors – Orders made for the children to spend time with the father in a graduating arrangement concluding in six nights per fortnight and half of all school holidays – Orders made allowing the mother to travel overseas with the children.

Family Law Act 1975 (Cth) 79(2), 75(2)

Norbis & Norbis (1986) 161 CLR 513

APPLICANT:

Mr Keirn

RESPONDENT:

Ms Moxy

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

SYC

8029

2014

DATE DELIVERED:

12 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

23, 26, 27 and 28 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ladopoulos

SOLICITOR FOR THE APPLICANT:

Rockliffs Solicitors and IP Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Barker Solicitors

Orders

PROPERTY
IT IS ORDERED

That the husband and the wife do all things required to effect the payment, from the funds held jointly by them in the National Australia Bank accounts #...31 and #...91; the O Bank (UK) accounts #...92 and #...84; the P Bank Joint Savings Account #...97; and the rental bond in the sum of $3,400, in the following order and priority, of the following sums:
1.1.The sum of $36,000 to an account to be held in their joint names in the National Australia Bank, to be used only for the payment of the fees required to pay for C’s…

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 Keirn & Moxey

Details

AGLC: Keirn & Moxey [2017] FamCA 487
Case: [2017] FamCA 487
Decision Date: 12 July 2017

CaseChat Overview and Summary

Rees J considered applications by the husband and wife concerning property adjustment and parenting arrangements. The parties had previously entered into an agreement under New Zealand law regarding their assets. The dispute involved the division of their joint assets, including a property in the UK held in the wife's sole name, and the establishment of a childcare fund. The parenting dispute concerned the father's application for equal shared time with the parties' two children, aged seven and four, which the mother opposed.

The court was required to determine the appropriate adjustment of property interests pursuant to s 79(2) of the Family Law Act 1975 (Cth), considering the parties' contributions and the nature of their assets, including the UK property. Additionally, the court had to consider the best interests of the children under s 60CC of the Family Law Act 1975 (Cth) when determining the parenting orders, specifically regarding the father's application for equal shared time.

In relation to property, the court adopted an asset-by-asset approach, deeming the UK property held in the wife's sole name as separate from the main asset pool. The court found insufficient evidence to support the husband's asserted contributions to the marriage. An amount of $36,000 was set aside from joint funds for a childcare fund, with the wife retaining the UK property and the remaining assets to be divided equally between the parties. For parenting, the court made orders for the children to spend time with the father in a graduating arrangement, culminating in six nights per fortnight and half of all school holidays, and permitted the mother to travel overseas with the children.

Orders

Orders of the court

PROPERTY

IT IS ORDERED

That the husband and the wife do all things required to effect the payment, from the funds held jointly by them in the National Australia Bank accounts #...31 and #...91; the O Bank (UK) accounts #...92 and #...84; the P Bank Joint Savings Account #...97; and the rental bond in the sum of $3,400, in the following order and priority, of the following sums:

1.1. The sum of $36,000 to an account to be held in their joint names in the National Australia Bank, to be used only for the payment of the fees required to pay for C’s care at day-care, pre-school or H School (or such other care as the parents jointly agree); after school care for B and, once C attends school, after school care for C and B until such fund is depleted. In the event that, when no fees are payable for after school care or day care, any amount remains in the account, that sum is to be divided equally between the husband and the wife.

1.2. The sum of $188,944 to the wife.

1.3. The balance to the husband.

That otherwise than as provided in these Orders, the husband is solely entitled to all assets in his possession at the date of these Orders and the wife is solely entitled to all assets in her possession at the date of these Orders.

PARENTING

BY CONSENT, IT IS ORDERED

The mother and father shall have equal shared parental responsibility for B born … 2010 and C born … 2013 (“the children”).

The children live with the mother.

School holidays

That the children spend time with the father during each school holiday period at the conclusion of Terms 2 and 3 in 2017 and Terms 1, 2 and 3 in 2018, as follows:

5.1. For 4 nights commencing at 8.00am on the first Saturday after commencement of the school holidays until 6.00pm on the following Wednesday;

5.2. For 3 nights commencing at 8.00am on the second Saturday after the commencement of school holidays until 6.00pm on the following Tuesday;

5.3. As otherwise agreed between the parties in writing.

That for the purposes of calculating the school holiday periods in accordance with the provisions of these Orders:

6.1. school holidays commence from the conclusion of school on the last day of school term referrable to the school day that children are to be in attendance and this shall be known as the "first day";

6.2. school holidays conclude at 5:00pm on the day prior to the first school day that children attend of each school term referable to the school B attends. This shall be known as the "last day"; and

6.3. unless otherwise agreed between the parties in writing, changeover halfway through a school holiday period shall occur at 5:00pm on the date in the middle of the first day and the last day, and in the event there are 2 middle days, then changeover shall occur at 12 noon on the first of the 2 middle days.

Special occasion time

That notwithstanding any Order herein, commencing from the date of the making of these Orders, when the children are not already spending time with the father and unless otherwise agreed between the parties in writing, the children spend time with the father as follows:

7.1. on the day prior to Father’s Day from 5:00pm until 5:00pm on Father's Day;

7.2. on the children’s birthdays in each year where the children are not already spending the night with the father on that day, then from 5:00pm until 7:00pm;

7.3. from 10:00am on Christmas Day until 12.00noon on Boxing Day in each year;

7.4. for Easter from 10:00am on Good Friday until 5:00pm on Easter Saturday in 2019 and each alternate year thereafter;

7.5. for Easter from 5:00pm on Easter Saturday until 5:00pm on Easter Monday in 2018 and each alternate year thereafter;

7.6. at such other times as agreed between the parties in writing.

That notwithstanding any Order herein, commencing from the date of the making of these Orders, where the children are not already spending time with the mother unless otherwise agreed between the parties in writing, the children live with the mother as follows:

8.1. on the day prior to Mother’s Day from 5:00pm until 5:00pm on Mother's Day;

8.2. on the children’s birthdays in each year where the children are not already spending the night with the mother on that day, then from 5:00pm until 7:00pm;

8.3. from 10:00am on Christmas Eve until 10:00am on Christmas Day in each year;

8.4. for Easter from 10:00am on Good Friday until 5:00pm on Easter Saturday in 2018 and each alternate year thereafter;

8.5. for Easter from 5:00pm on Easter Saturday until 5:00pm on Easter Monday in 2019 and each alternate year thereafter;

8.6. at such other times as agreed between the parties in writing.

Changeover

That unless otherwise stated in these Orders or agreed between the mother and father from time to time, changeover shall occur at the children’s school/s where it is a school day on the day of changeover and otherwise, if not a school day then:

9.1. the father or his nominee shall collect the children from the mother’s residence at the commencement of his time with the children; and

9.2. the father or his nominee will return the children to the mother’s residence at the conclusion of his time with the children unless the mother resides more than 30 minutes driving away referrable to the quickest route calculated by Google Maps for 6pm on a Sunday.

Mother and father’s communication with the children

10. That each party not prevent or interfere with and do all things necessary to facilitate and encourage, the children to make telephone calls to and receive telephone calls from the mother or father whilst in the care of the other and where a mobile telephone is provided to the children by the other parent, as far as reasonably practical, ensure that this mobile telephone is available to the children whilst in the home and is kept charged.

11. That each party will do all things to facilitate the children having access to Skype or Facetime or other free electronic communication device and facilitate these services being used by the children to contact the other parent when they are in their care not less than each second day.

Information

12. Each parent shall notify the other, as soon as possible, and in any event within 4 hours, of any serious injury or illness suffered by the children whilst with that party.

13. Each party shall notify the other, not more than 24 hours after any change to their address and/or landline and/or mobile telephone numbers and/or email address.

14. Each party shall notify the other party of any contact details for Facetime, or Skype, or Viber within 7 days from the date of the making of these Orders and keep the other party notified of any change not more than 24 hours after any change occurs.

15. The mother and father authorise any day care centre or school the children may attend to provide to the parents copies of reports, newsletters and announcements of day care / school activities, or otherwise pertaining to the education of the children or if none have been made available in writing then the parent receiving such information shall provide written particulars which include by email, such reports and/or activities to the other parent within 3 days of such documents or particulars being received by them, and both parents shall authorise staff members at any day care and school the children may attend to discuss the children’s progress with the other parent.

16. The parties shall keep each other fully informed of all details of any medical or dental treatment administered to the children, and shall authorise and direct any persons or entity treating the children to discuss with the other parent matters relevant to the children’s health and welfare.

Airport Watch List

17. The Federal Police are requested to remove forthwith the names of the children: B born ... 2010; and C born … 2013, from the Airport Watch List and PACE Alert System and the mother be responsible for serving a copy of the Orders on the Australian Federal Police.

Passport

18. That the mother retain the UK and New Zealand passports for B except at times of travel and at such other times as necessary to make travel bookings for travel under these Orders, and the mother provide to the father B’s passport not less than 4 weeks prior to the scheduled date of departure for any travel overseas.

19. That the father retain the UK and New Zealand passports for C except at times of travel and at such other times as necessary to make travel bookings for travel under these Orders, and the father provide to the mother C’s passport not less than 4 weeks prior to the scheduled date of departure for any travel overseas.

Restraint

20. That each party is hereby on a without admissions basis restrained from:

20.1. making any negative or denigrating comments about the other parent or the other parent's family members in the presence or hearing of the children;

20.2. allowing any other person to make any negative or denigrating comments in relation to the other parent or the other parent's family members in the presence or hearing of the children (as far as they are able to).

IT IS ORDERED

That in addition to the consent Minutes of Order signed by the parties and made by the Family Court of Australia on 26 June 2017 (and contained above at Orders 3 to 20 of these Orders), the Court makes the following Orders:

School Terms

21. That for the period from the date of the making of these Orders until the conclusion of Term 4 in 2017 the children spend time with the father on a two‑week rotation during school term time with week 1 to commence on the first Wednesday after the commencement of each school term, as follows:

21.1. In week 1:

21.1.1. from the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on Thursday (or 8:00am if the children or either of them is not in attendance at school or day care on that day); and

21.1.2. from 9:00am on Saturday until 8:00am on the following Monday.

21.2. In week 2:

21.2.1. from the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on Thursday (or 8:00am if the children or either of them is not in attendance at school or day care on that day).

22. That for the period from the commencement of Term 1 in 2018 until the conclusion of Term 4 in 2019, the children spend time with the father on a two-week rotation during school term time with week 1 to commence on the first Wednesday of each school term, as follows:

22.1. In week 1:

22.1.1. From the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on Thursday (or 8:00am if the children or either of them is not in attendance at school or day care on that day); and

22.1.2. From the conclusion of school or day care on Friday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until 8.00am on the following Monday (or 8:00am if the children or either of them is not in attendance at school or day care on that day.

22.2. In week 2:

22.2.1. From the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on Thursday (or 8:00am if the children or either of them is not in attendance at school or day care on that day).

23. That for the period from the commencement of Term 1 2020 and thereafter, the children spend time with the father on a two-week rotation during school term time, with week 1 to commence on the first Wednesday after each school term commences, as follows:

23.1. In week 1:

23.1.1. From the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on the following Monday (or 8:00am if the children or either of them is not in attendance at school or day care on that day).

23.2. In week 2:

23.2.1. From the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on Thursday (or 8:00am if the children or either of them is not in attendance at school or day care on that day).

School holidays

24. That in the short school holidays at the conclusion of Terms 1, 2 and 3 from 2019 and thereafter:

24.1. That the children spend time with the father at the conclusion of Terms 1, 2 and 3 in 2019 and at the conclusion of Terms 1, 2 and 3 each year thereafter by agreement between the parties in writing and if no agreement is reached 28 days prior to the school holiday period commencing then the children spend time with the father as follows:

24.1.1. For one half of each such school holiday being the first half in 2019 and each alternate year thereafter, and the second half in 2020 and every second year thereafter.

25. That in the Christmas school holidays commencing in December 2017 and December 2018 :

25.1. That the children spend time with the father during the school holiday periods commencing in December 2017 and December 2018 by agreement between the parties in writing and if no agreement is reached 28 days prior to the school holiday period commencing then the children spend time as follows:

25.1.1. Commencing at the conclusion of Term 4 on a two-week rotation during the school holiday period with Week 1 to commence on the first Saturday after the commencement of the school holidays being:

25.1.1.1. For 4 nights commencing at 8.00 am on the first Saturday after the commencement of school holidays until 6.00 pm on the following Wednesday; and

25.1.1.2. For 3 nights commencing at 8.00 am on the second Saturday after the commencement of school holidays until 6.00 pm on the following Tuesday.

26. That notwithstanding anything in Order 25, the mother shall be permitted to travel with the children to Europe for three weeks in January 2019, providing that the children return to Australia not less than five days before the first day of the school term in 2019 and provided that she gives notice to the father in accordance with the provisions of Order 29.

27. That in the Christmas school holidays commencing in December 2019:

27.1. That the children live with the father during the school holiday period commencing in December 2019 by agreement between the parties in writing and if no agreement is reached 28 days prior to the school holiday period commencing then the children spend time as follows:

27.1.1. From the conclusion of school on the last day the children attend school in Term 4 until noon on the second Saturday of the holidays; and

27.1.2. From noon on the third Saturday of the holidays until noon on the fifth Saturday.

28.

That the children live with the father during the 2020 Christmas school holiday period and every Christmas school holiday period thereafter by agreement between the parties in writing and if no agreement is reached 28 days prior to the school holiday period commencing then the children spend time with the father as follows:

28.1 For one half of each school holiday being:

28.1.1 the first half in the school holidays commencing in December 2020 and each alternate year thereafter; and

28.1.2 the second half in the school holidays commencing in December 2021and each alternate year thereafter.

29.

That notwithstanding any Order herein, commencing from C attaining the age of 5 (from 11 June 2018) the mother and father are at liberty to take the children outside of the Commonwealth of Australia for a period of up to one (1) week on one occasion in each year during a school holiday period, at times agreed between the parties in writing and provided that they give the other party at least 6 weeks’ written notice of the intended travel dates and comply with the following:

29.1. provide the other parent not less than 28 days prior to the date of departure, a detailed itinerary including the contact details for the children whilst overseas;

29.2. not less than 7 days prior provide a detailed itinerary of such overseas travel including copies of all airline tickets (or electronic ticket details if available) and accommodation address and contact details.

29.3. during the overseas holiday, the parent they are with ensures the children telephones the other parent on at least two occasions each week.

30.

That, subject to Order 26, in the school holidays commencing in December 2019, each parent is permitted to travel with the children outside Australia for a period of two consecutive weeks and from the school holidays commencing in December 2020, each parent shall be permitted to travel with the children outside Australia for any period that the children live with that parent pursuant to these Orders.

31.

That both parties shall be restrained from discussing any of the allegations in these proceedings in the presence or hearing of the children.

32.

That the parties shall keep each other informed of any extra-curricular and/or sporting activities in which the children are engaged in and make all reasonable efforts to ensure the attendance of the children at those activities whilst the children are in the care of either party pursuant to these Orders.

33.

The mother shall be restrained from enrolling the children in any other school either in Australia or overseas without the father’s written consent or an Order of this Court.

34.

That the mother pay to Legal Aid NSW the sum of $6,899.75 within one month of the date of these Orders.

35.

That the father pay to Legal Aid NSW the sum of $6,899.75 within one month of the date of these Orders.

36.

That each of the mother and the father provide written confirmation to the other no later than 7 days after compliance with the preceding orders that they have made their respective payments to Legal Aid NSW.

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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