FAMILY COURT OF AUSTRALIA
| LACHLAN & LACHLAN | [2008] FamCA 455 |
| FAMILY LAW – CHILDREN - Best interests FAMILY LAW – PROPERTY |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| A & D [2004] FamCA 879 C & C [2006] FamCA 701 Chorn and Hopkins (2004) FLC 93-204 Coghlan and Coghlan (2005) FLC 93-220 M & M (2006) FLC 93-281 ZN v YH (2002) 29 Fam LR 20 |
| APPLICANT: | Mrs Lachlan |
| RESPONDENT: | Mr Lachlan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
| FILE NUMBER: | SYF | 3137 | of | 2006 |
| DATE DELIVERED: | 25 June 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 19-21 November 2007 14- 16 April 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Messner |
| SOLICITOR FOR THE APPLICANT: | Mitchell Lawyers |
| COUNSEL FOR THE RESPONDENT: | In Person |
| SOLICITOR FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Knox |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
Orders
Parenting Orders
That all previous parenting orders in relation to the child, …, born … September 1995, be discharged.
That the father shall have sole parental responsibility for the child. The father is to consult with the mother by email before making any decision in relation to important aspects of the child’s life. The father in making a decision about any such matter the views of the child and the views of the mother.
The child is to live with his father.
The child is to spend time with his mother as follows:
(a) During each school week the child is to spend one afternoon per week with his mother from the conclusion of school until 7.30 p.m. The father is to advise the mother what afternoon will be suitable for the child at the commencement of each school term and thereafter for the remainder of the term that will be the afternoon the child is to spend with his mother. Changes can be made during the term with the agreement of the child and the mother.
(b) During school term, every second weekend on Saturday from the conclusion of any sporting commitment/school activity until 8.00 p.m and the next day (Sunday) from 9.30 a.m. until 5.30 p.m. The mother is to collect the child from his Saturday activity for the purpose of commencing her time with him. The mother is to otherwise be responsible for collecting the child from and returning him to his father’s residence unless the father agrees that the child can walk or cycle between the parties’ houses. In such circumstances the mother is to have the child telephone his father before he leaves his mother’s house and advise his father he is leaving his mother’s home. Further, if the father agrees that the child can either walk or cycle between the parties’ houses for the purpose of spending time with his mother then the father is to ensure that the child telephones his mother immediately before he leaves his father’s house to advise…
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- AGLC
- Lachlan and Lachlan [2008] FamCA 455
- Case
- [2008] FamCA 455
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary caregiver for the child, the specific time the child would spend with each parent, and how parental responsibility would be exercised. Additionally, the court needed to resolve disputes concerning the division of various assets, including real estate, financial accounts, shares, and superannuation interests, and to make orders for the payment of costs associated with the proceedings.
In relation to parenting, the court discharged previous orders and made new orders granting the father sole parental responsibility, with the requirement to consult the mother by email on important decisions and to consider the child's and mother's views. The child was ordered to live with the father, with specific arrangements for time spent with the mother, including weekday afternoons, every second weekend, and holiday periods. The court also made orders restraining both parents from denigrating each other or discussing the proceedings with the child, and mandated the child's attendance with a therapist. Regarding property, the court ordered the mother to pay a sum to the father, with a provision for the sale of a property if payment was not made. Further orders detailed the division of sale proceeds, occupation of the property, management of joint accounts, transfer of various assets including vehicles and financial holdings, and the division of superannuation interests. The court also made orders regarding the payment of costs for the Independent Children's Lawyer and expert reports.
Orders
Orders of the court
Parenting Orders
1.
That all previous parenting orders in relation to the child, …, born … September 1995, be discharged.
2.
That the father shall have sole parental responsibility for the child. The father is to consult with the mother by email before making any decision in relation to important aspects of the child’s life. The father in making a decision about any such matter the views of the child and the views of the mother.
3.
The child is to live with his father.
4.
The child is to spend time with his mother as follows:
(a) During each school week the child is to spend one afternoon per week with his mother from the conclusion of school until 7.30 p.m. The father is to advise the mother what afternoon will be suitable for the child at the commencement of each school term and thereafter for the remainder of the term that will be the afternoon the child is to spend with his mother. Changes can be made during the term with the agreement of the child and the mother.
(b) During school term, every second weekend on Saturday from the conclusion of any sporting commitment/school activity until 8.00 p.m and the next day (Sunday) from 9.30 a.m. until 5.30 p.m. The mother is to collect the child from his Saturday activity for the purpose of commencing her time with him. The mother is to otherwise be responsible for collecting the child from and returning him to his father’s residence unless the father agrees that the child can walk or cycle between the parties’ houses. In such circumstances the mother is to have the child telephone his father before he leaves his mother’s house and advise his father he is leaving his mother’s home. Further, if the father agrees that the child can either walk or cycle between the parties’ houses for the purpose of spending time with his mother then the father is to ensure that the child telephones his mother immediately before he leaves his father’s house to advise her he is leaving his father’s house. The mother’s first weekend period with the child is to commence on the first weekend after these orders.
(c) The mother’s weekends commence on the first weekend in the new school term if she has spent time with the child during the first half of the school holidays immediately before the subject school term and on the second weekend if she spent the last part of the school holidays with him.
(d) During all but the Christmas school holidays the child is to spend a one week block with his mother with such time to be day time only unless he agrees to stay overnight. The mother is to nominate the week she proposes to spend with the child no later than twenty-eight (28) days before each holiday period. Unless there is some special reason the mother is to nominate either the first or the second week of the school holidays. The mother is to consult with the child prior to nominating her holiday time to ascertain whether he has a preference about the week he will spend with her and the mother is to facilitate the child’s requested time if at all possible.
(e) In the Christmas School holidays the child is to spend every second week with his mother unless the mother and the child agree to another arrangement which sees the child spend about half of the holidays with his mother. The mother is to notify the father of the proposal for spending time with the child during the Christmas school holiday period no later than twenty-eight (28) days prior to the holiday period commencing.
(f) All communication between the parties is to be by email. Each email received is to be acknowledged by return email.
(g) The parties may by email agree to alter any of the orders for the time the child is to spend with his mother under these orders provided it is done by email so that each can retain a copy in writing of the agreed changes.
(h) The orders for the child to spend time with the mother are to lapse upon the child attaining the age of fifteen (15) years. Thereafter the parties are to facilitate any request of the child to spend time with the other parent and each parent is to ensure that the other parent is advised by email of any arrangement they have made with the child to spend time with that parent. the child is not to be permitted to move from one parent to the other for the purpose of spending time with that parent without the parents confirming that arrangement by email.
(i) At any time the child agrees to spend overnight time with his mother he is to notify his father and the child may then stay overnight with his mother on the afternoon he spends with her during the school term week and may also stay overnight on the weekends which he spends with her under these orders. If the child so elects he can stay with his mother on the Sunday night of his weekend with her and then go to school from her residence on Monday morning.
(j) the child is to sleep in his own bedroom whenever he spends overnight periods with his mother.
5.
The Court NOTES each party is ordered not to pressure the child into making a decision one way or another about staying overnight with his mother.
6.
Unless these orders otherwise provide differently the mother is to be responsible for collecting the child at the commencement of her time with him and returning him at the conclusion of that time. Depending on the circumstances and the provisions of these orders the child may be collected from school or from his father’s residence. Likewise the child may be returned to his school or to his father.
7.
The father shall ensure that the child attends upon a therapist nominated by the Independent Children’s Lawyer in consultation with Dr L for the purposes of assisting the child in living between his parents’ homes where there remains a high level of conflict between them.
8.
The Independent Children’s Lawyer has leave to provide a copy of Dr L’s reports dated 19 June 2007, 28 February 2008 and 30 March 2008 to the therapist engaged to assist the child.
9.
The Court NOTES that the child’s therapist may, if she/he so desires, liaise with Dr L in relation to the assistance to be provided to the child.
10.
The therapist appointed to assist the child, as provided for in these orders is authorised to communicate with the Independent Children’s Lawyer in relation to the child’s progress.
11.
That the mother is restrained from denigrating the father or any member of the father’s family to the child or within his presence or hearing, and shall use her best endeavours to ensure that no other person does so.
12.
That the father is restrained from denigrating the mother or any member of the mother’s family to the child or within his presence or hearing, and shall use his best endeavours to ensure that no other person does so.
13.
Each parent is restrained from discussing these proceedings with the child or within his presence or hearing.
14.
Each parent is restrained from showing the child any documents relating to these proceedings including but not limited to affidavits, reports, letters and orders.
15.
The appointment of the Independent Children’s Lawyer be continued for a period of twelve (12) months from the date of these Orders.
16.
That the Independent Children’s Lawyer have leave to re-list this matter before Justice Le Poer Trench by arrangement with his Associate.
17.
That within three (3) months the father pay to the Legal Aid Commission of NSW the amount of $11,483.60 being his share of the costs of the Independent Children’s Lawyer in the amount of $9,901.10 and his share of the outstanding expert’s costs in the amount of $1,582.50
18.
That within three (3) months the mother pay to the Legal Aid Commission of NSW the amount of $11,483.60 being her share of the costs of the Independent Children’s Lawyer in the amount of $9,901.10 and her share of the outstanding expert’s costs in the amount of $1,582.50.
19.
That each party pay to the Legal Aid Commission of NSW one half of the additional costs of Dr L, Dr W and Dr Y for their court attendance at the hearing. Such payment to be made within twenty- one (21) days of receiving an invoice from the Independent Children’s Lawyer.
20.
That the mother and father be restrained from removing the child, …, born … September 1995, from the Commonwealth of Australia pending further order of the Court.
21.
That the name of the child be placed on the Passenger Automatic Selection System at points of international departure from Australia, and the Court requests the assistance of the Australian Federal Police in the implementation of this Order.
22.
The father is to bring the child to the Sydney Registry of the Family Court of Australia to meet with Mr G, Family Consultant, and Justice Le Poer Trench at 4:15 p.m. on Tuesday 1 July 2008.
23.
Each of the parties is to be at the Sydney Registry of the Family Court of Australia, court room 5B, at 4:30 p.m. on Tuesday 1 July 2008. The Independent Children's Lawyer is requested to be present at that time. The parties do not require legal representation; however, they are welcome to bring their lawyers should they so desire.
24.
Pursuant to s65DA(2) and s62B, 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.
Property Orders
25.
Within two (2) calendar months from the date hereof the mother is to pay the father the sum of $187,812. In the event of her failing to pay that sum within the time required then the parties are to cause the property at D (the property) to be sold by an agreed real estate agent and at an agreed sale price. The property is to be offered for sale by private treaty unless the parties agree to sell the property by auction.
26.
In the event of a dispute about the sale price for the property or the identity of the agent to be appointed to sell the property then the parties are to jointly appoint the President of the Real Estate Agents Institute of NSW to nominate an agent to act and/or nominate a valuer to appoint a fair sale price. The parties are to jointly pay the costs of the president and or his nominee which may be incurred in determining any such dispute.
27.
The parties are to jointly appoint a solicitor to act for them on the sale of the property. If the parties cannot agree on a single solicitor to act for them collectively, then they are each to appoint their own solicitor to act on the sale and then instruct the solicitors to cooperate in order to carry out the orders of the court relating to the sale of the property.
28.
Upon a sale of the property being completed the parties are to cause the sale proceeds to be applied as follows:-
payment of any agents commissions and fees;
discharge of the registered mortgage;
payment of any legal costs of sale;
payment to the father of 40.4 per cent of the sale proceeds;
payment of the balance to the mother.
29.
The mother is to have occupation of the property pending the sale and is to meet all the payments required under the mortgage, rates and taxes pending the sale. The mother is to keep the property presentable for prospective purchasers to inspect and co-operate with the real estate agent to provide access at all reasonable times.
30.
The mother shall indemnify and keep indemnified the father in respect of all claims for rates and taxes, if any, outstanding in respect of the former matrimonial home and all claims for in respect of electricity, gas, telephone, and any other services connected to or supplied to the said property.
31.
The mother shall indemnify and keep indemnified the father in respect of the registered mortgage on the property. In the event of the property being sold pursuant to these orders then the mortgage is to be discharged and that discharge will extinguish the mother’s indemnity.
32.
The parties are to be the trustee of the child’s bank account. The mother is to forthwith cause the account to be transferred into the parties’ joint names as Trustee for the child. Neither party is to be able to operate the account without the signature of the other. The mother is to cause details of the change in the particulars of the account, as required by these orders, to be provided to the father within twenty-eight (28) days of the date hereof. Thereafter the mother is to ensure the father receives copies of all statements and correspondence received by her in relation to the account. Upon the child attaining the age of eighteen (18) years the parties are to transfer the account to his absolute control.
33.
The parties are to do all things necessary to cause the Coles cheque of $2,000 and the un-deposited dividends of $894.50 to be paid to the father.
34.
The mother is to forthwith sign all documents necessary to allow the father to register the Toyota Camry registration number … in his name.
35.
Each party is to cause a copy of these orders to be forthwith served upon the Trustee of the mother’s superannuation fund being the subject of orders made herein.
36.
That the mother transfer to the father all of her right, title and interest and the father keep and retain all his right, title and interests in monies held in the following financial institution accounts:
(a) The Gateway Credit Union Account No. … in the name of the father;
(b) The Commonwealth Bank VR2 Account;
(c) The V Bank Account No. … Offset Account in the name of the mother and the father
37.
The parties cause the jointly owned shares to be sold and the proceeds to be divided between them. For the purpose of this order the mother is to forthwith arrange for the sale of the shares and cause the father to receive his share of the sale proceeds at the same time she receives her share. The mother is to provide to the father evidence of the sale of the shares, commissions charged and the like.
38.
That the mother transfer to the father all of her right title and interest in the Forex Trading Account.
39.
That the father transfer to the mother all of his right title and interest in the Timeshare holiday facility. The mother is to provide to the father for his signature and return to her, all of the documents necessary to effect a transfer of the time share interest.
40.
The base amount allocated to the father out of the interest of the mother in the R Super Fund account number … pursuant to section 90MT(4) of the Family Law Act 1975 is $218,845.
41.
Pursuant to section 90MT(1) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of the mother in the R Super Fund account number … the Trustee of the fund shall:
(a) Pay to the father or his administrators, executors, beneficiaries, heirs or assigns the amount which is calculated in accordance with the Family Law (Superannuation) Regulations 2001 using a base amount of $218,845; and
(b) Make a corresponding reduction in the entitlement that the mother would have but for these orders.
42.
The Trustee of the R Super Fund account number … shall do all acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the Trustee can calculate the entitlement of, and make payment to the father in accordance with foregoing Order.
43.
That the operative time for the purpose of these Orders is the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee of the R Super Fund.
44.
Pursuant to section 106A of the Family Law Act 1975 (Cth), in the event either party refuses or neglects to comply with the provisions of these orders, the Registrar of the Family Court of Australia is hereby appointed to execute all deeds and documents in the name of the father and/or the mother, and do all such acts and things necessary to give validity and operation to the said orders within fourteen (14) days of the reasonable request to do so being sent to the last known residential address of the party or solicitor acting for the parties.
45.
Otherwise each party is declared the owner of any item of personalty in their sole name including any bank accounts and superannuation interest currently in their possession or control.
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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