KIMBERLEY & KIMBERLEY - [2011] FamCA 406

FAMILY COURT OF AUSTRALIA

KIMBERLEY & KIMBERLEY

[2011] FamCA 406

FAMILY LAW – CHILDREN – With whom the children spend time – Where visitation has been erratic – Where the parties lack communication – Where allegations of violence cannot yet be determined.

FAMILY LAW – PROPERTY – Exclusive occupation of the family home – Where the father is the primary owner of the property and pays the mortgage – Where the mother has the convenient option of staying with the maternal grandparents who traditionally care for the children in work hours.

Family Law Act 1975 (Cth)

Real Property Act 1900 (NSW)

Davis & Davis (1976) FLC 90-062
Dean & Dean (1977) FLC 90-213

Ploughman & Ploughman (1970) 16 FLR 447

APPLICANT:

Ms Kimberley

RESPONDENT:

Mr Kimberley

FILE NUMBER:

SYC

287

2011

DATE DELIVERED:

7 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

K.R. Barnes & Co

COUNSEL FOR THE RESPONDENT:

Mr Millar

SOLICITOR FOR THE RESPONDENT:

Aitken Lawyers

Orders

Pending further order:

The parties have equal shared parental responsibility in respect of the children of the marriage, M born … July 2007 and S born … July 2008 (“the children”).
The children live with their mother.
The children spend time with their father each Sunday from 9am to 5pm and each Thursday from 6pm to 7.30pm.
The mother deliver the children to their father at the commencement of the periods detailed in order 3 and the father return the children at the conclusion of these periods.
The mother purchase a book (the “communication book”) into which each parent is to write in a timely manner, significant information relating to the welfare of the children or any of their activities. The communication book is to pass between the parents, by placing it in a bag to be carried by one of the children at each changeover.
The mother attend a post separation parenting course.
The father have sole and exclusive use of the property situated at and known as M Street, Sydney Suburb 1 (“the matrimonial home”).
The mother’s application for the sale of the matrimonial home be dismissed.
The mother’s application for spousal maintenance be dismissed.
The mother provide to the father copies of any document she has given or needs to give to her accountant for her accountant to be able to prepare the 2010 tax return for the mother.
The father’s application in relation to the E-tag be dismissed.
Both parties be restrained from drawing upon their line of credit unless there is a written consent of each of the parties or a further court order to do so.
The chattels listed in order 12 sought by the mother in her Response to an Application in a Case filed 8 April 2011 remain in the matrimonial home.
The mother’s application in relation to chattels be stood over (order 12 sought in the mother’s Response to an Application in a Case filed 8…

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 KIMBERLEY & KIMBERLEY

Details

AGLC: KIMBERLEY & KIMBERLEY [2011] FamCA 406
Case: [2011] FamCA 406
Decision Date: 7 June 2011

CaseChat Overview and Summary

In *Kimberley & Kimberley*, heard by Watts J, the court considered applications concerning the children of the marriage and the parties' property. The dispute involved issues of parental responsibility, the children's living arrangements and time spent with each parent, and the exclusive occupation of the family home.

The primary legal issues before the court were how the children should spend time with their parents, given erratic visitation and poor communication, and whether allegations of violence raised by one party could be determined at that stage. Additionally, the court had to determine the exclusive occupation of the matrimonial home, considering the father's primary ownership and mortgage payments, and the mother's alternative accommodation with her parents who traditionally cared for the children during work hours.

Watts J ordered that the parties share equal parental responsibility for the children, who were to live with the mother. The father was granted specific, limited time with the children on Sundays and Thursdays. To improve communication, the mother was ordered to purchase a communication book for significant information exchange at changeovers, and she was also directed to attend a post-separation parenting course. The father was granted sole and exclusive use of the matrimonial home, and the mother's applications for its sale and for spousal maintenance were dismissed. Further orders addressed financial matters, including the restraint on drawing on lines of credit without consent and the disposition of certain chattels.

Orders

Orders of the court

Pending further order:

The parties have equal shared parental responsibility in respect of the children of the marriage, M born … July 2007 and S born … July 2008 (“the children”).

The children live with their mother.

The children spend time with their father each Sunday from 9am to 5pm and each Thursday from 6pm to 7.30pm.

The mother deliver the children to their father at the commencement of the periods detailed in order 3 and the father return the children at the conclusion of these periods.

The mother purchase a book (the “communication book”) into which each parent is to write in a timely manner, significant information relating to the welfare of the children or any of their activities. The communication book is to pass between the parents, by placing it in a bag to be carried by one of the children at each changeover.

The mother attend a post separation parenting course.

The father have sole and exclusive use of the property situated at and known as M Street, Sydney Suburb 1 (“the matrimonial home”).

The mother’s application for the sale of the matrimonial home be dismissed.

The mother’s application for spousal maintenance be dismissed.

10.

The mother provide to the father copies of any document she has given or needs to give to her accountant for her accountant to be able to prepare the 2010 tax return for the mother.

11.

The father’s application in relation to the E-tag be dismissed.

12.

Both parties be restrained from drawing upon their line of credit unless there is a written consent of each of the parties or a further court order to do so.

13.

The chattels listed in order 12 sought by the mother in her Response to an Application in a Case filed 8 April 2011 remain in the matrimonial home.

14.

The mother’s application in relation to chattels be stood over (order 12 sought in the mother’s Response to an Application in a Case filed 8 April 2011). The mother may relist that application upon 7 days notice with appropriate supporting evidence, after she has attempted to resolve that part of the dispute with the father.

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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