KEIRN & MOXEY - [2015] FamCA 663

FAMILY COURT OF AUSTRALIA

KEIRN & MOXEY

[2015] FamCA 663

FAMILY LAW – CHILDREN – Spend time – Appropriate forum – Where the wife sought orders permitting her to leave to the United Kingdom with the children and institute proceedings there – Where it was found that the wife was not estopped from prosecuting her case in relation to appropriate forum by having sought orders in the Australian proceedings to agitate her application – Where it was found that the parents and the children are settled in Australia – Where the single expert opined that the wife could remain in Australia for the foreseeable future – Where it was found that if the children were to return to the United Kingdom their living arrangements would be disrupted – Australia determined to be the appropriate forum – Interim arrangements for the children to spend time with the husband made.

FAMILY LAW – PROPERTY – Interim distribution by way of partial property settlement –Where the wife removed funds from the parties’ joint account – Wife ordered to provide $200,000 to the husband by way of partial property settlement – Wife ordered to deposit $223,000 in a controlled moneys account pending further order – Balance of the funds removed by the wife to be retained by her as a partial property settlement.

Family Law Act 1975 (Cth) s 69ZQ

In re F (Abduction: Custody Rights) [1991] Fam 25
Karim & Khalid (2008) 38 Fam LR 300
Kwon & Lee (2006) FLC 93-287

Randle & Randle [2011] FamCA 830
ZP v PS (1994) 181 CLR 639

APPLICANT:

Mr Keirn

RESPONDENT:

Ms Moxey

FILE NUMBER:

SYC

8029

2014

DATE DELIVERED:

14 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

16 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mater

SOLICITOR FOR THE APPLICANT:

Rockliffs Solicitors and IP Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Boyle

SOLICITOR FOR THE RESPONDENT:

Reid Family Lawyers

Orders

IT IS ORDERED

That by way of partial property settlement, the wife cause to be paid to the husband, from the sum of $623,000 removed by her from their joint account, the sum of $200,000.
That the wife cause the sum of $223,000 to be placed into an interest bearing account jointly with the husband such that both parties are required to consent to any withdrawal.
That the balance of the funds removed by the wife from the parties’ joint account be retained by her as a partial property settlement.
That the application for interim orders contained in the Response of the wife filed 17 March 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keirn & Moxey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8029 of 2014

Mr Keirn

Applicant

And

Ms Moxey

Respondent

REASONS FOR JUDGMENT

These are proceedings arising out of the relationship between…

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.

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Details

AGLC: KEIRN & MOXEY [2015] FamCA 663
Case: [2015] FamCA 663
Decision Date: 14 August 2015

CaseChat Overview and Summary

In the matter of *Keirn & Moxey*, the wife sought orders permitting her to relocate to the United Kingdom with the parties' children and to institute proceedings there concerning their future. The husband contested this, arguing that Australia was the appropriate forum.

The primary legal issue before the court was to determine the appropriate forum for the proceedings concerning the children. Additionally, the court was required to consider interim property settlement orders, particularly in light of the wife's removal of funds from a joint account.

Rees J found that the wife was not estopped from arguing for the United Kingdom as the appropriate forum, despite having sought orders in the Australian proceedings. However, the court determined that Australia was the appropriate forum, noting that both parents and the children were settled in Australia. The single expert's opinion that the wife could remain in Australia for the foreseeable future and that a return to the United Kingdom would disrupt the children's living arrangements were significant factors in this determination.

Consequently, the court made interim orders for the children to spend time with the husband. In relation to property, the wife was ordered to pay $200,000 to the husband from the $623,000 she had removed from their joint account, by way of partial property settlement. A further $223,000 was to be deposited into a jointly controlled interest-bearing account pending further order, with the remaining balance retained by the wife as a partial property settlement. The wife's application for interim orders contained in her Response filed on 17 March 2015 was dismissed.

Orders

Orders of the court

IT IS ORDERED

That by way of partial property settlement, the wife cause to be paid to the husband, from the sum of $623,000 removed by her from their joint account, the sum of $200,000.

That the wife cause the sum of $223,000 to be placed into an interest bearing account jointly with the husband such that both parties are required to consent to any withdrawal.

That the balance of the funds removed by the wife from the parties’ joint account be retained by her as a partial property settlement.

That the application for interim orders contained in the Response of the wife filed 17 March 2015 be dismissed.

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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