LANTOS & LANTOS - [2019] FCCA 3588

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANTOS & LANTOS

[2019] FCCA 3588

Catchwords:
FAMILY LAW – Final parenting hearing – best interests of child-orders made –final property hearing-orders made.

Legislation:

Family Law Act 1975 (Cth), Div.4 Pt.XI, ss.102NA, 60B, 60CA,

60CC, 61DA, 65D, 65DAA.

Cases cited:

Lotta & Lotta [2017] FamCA 50

Applicant:

MS LANTOS

Respondent:

MR LANTOS

File Number:

PAC 1000 of 2016

Judgment of:

Judge Newbrun

Hearing date:

21 and 22 October 2019

Date of Last Submission:

22 October 2019

Delivered at:

Parramatta

Delivered on:

20 December 2019

REPRESENTATION

Solicitors for the Applicant:

Mr Bainbridge

The Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Mr Cook

Solicitors for the Independent Children's Lawyer:

Mr Wilkins

ORDERS

Parenting

That the mother have sole parental responsibility for any major long-term issues relating to the care, welfare and development of the child [X] born … 2014 (the child).
That the child live with the mother.
That the child be permitted to travel internationally, without the need for the consent of the father, Mr Lantos to be provided to the issue of a passport to the child. The Mother shall be the only person with parental responsibility of the child for the purposes of applying for and being issued with an Australian passport for the child.
That the mother shall forthwith notify the father of any and all schools which the child may ordinarily attend.
That the mother shall do all acts and things necessary to authorise the father to obtain copies of all of the child’s school reports, photographs, notifications of school events and these orders shall be sufficient authority for him to do so.
That the mother shall forthwith notify the father of the child’s General Practitioner and any other medical specialists and associated health practitioners that the child may attend upon from time to time.
That the mother shall do all acts and things necessary to authorise the father to contact the child’s General Practitioner and any other medical specialists and associated health practitioners the child may attend upon from time to time to discuss the child’s condition or treatments if any, and these orders shall be sufficient authority for him to do so.
The father shall be permitted to send the child letters, cards and/or presents, no greater than three times per annum. To facilitate this Order the mother shall within 28 days inform the father of a postal address to which such material can be sent.

Property

That within 28 days of the making of these orders, the Respondent do all such acts and things and sign all necessary documents so as to transfer to the Applicant all his right title and interest in the former matrimonial home situate at B Street Town A NSW and more specifically described as folio …86.
That contemporaneously with the transfer set out above the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the subject property and replace it with…

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: LANTOS & LANTOS [2019] FCCA 3588
Case: [2019] FCCA 3588
Decision Date: 20 December 2019

CaseChat Overview and Summary

This matter concerned final parenting and property orders made by Judge Newbrun in the Family Court of Australia. The dispute involved Mr and Mrs Lantos, with the court required to determine the best interests of their child, [X], and to divide the parties' property.

The court was tasked with determining the primary caregiver for the child, including arrangements for the child's residence and the allocation of parental responsibility for major long-term issues. Additionally, the court had to address the child's ability to travel internationally and the father's access to information regarding the child's schooling and medical care. In relation to property, the court was required to make orders for the division of the former matrimonial home, a motor vehicle, a bank account, and other personalty and financial resources.

In making the parenting orders, the court applied the paramount consideration of the best interests of the child. This resulted in orders for the mother to have sole parental responsibility for major long-term issues, for the child to live with the mother, and for the mother to have sole responsibility for the child's passport. The father was granted specific rights to receive information about the child's schooling and medical care, and limited rights to send gifts. For the property division, the court made orders for the transfer of the former matrimonial home to the applicant, the discharge of the existing mortgage and its replacement, the applicant's sole ownership of a motor vehicle, the closure of a joint bank account with the balance to the applicant, and each party retaining personalty and financial resources in their possession.

The court also made orders for the parties to execute all necessary documents to give effect to the property division, with the Registrar appointed under section 106A of the *Family Law Act* to execute documents in the event of refusal or neglect. Liberty to apply was granted to either party in relation to the implementation or enforcement of the orders.

Orders

Orders of the court

Parenting

That the mother have sole parental responsibility for any major long-term issues relating to the care, welfare and development of the child [X] born … 2014 (the child).

That the child live with the mother.

That the child be permitted to travel internationally, without the need for the consent of the father, Mr Lantos to be provided to the issue of a passport to the child. The Mother shall be the only person with parental responsibility of the child for the purposes of applying for and being issued with an Australian passport for the child.

That the mother shall forthwith notify the father of any and all schools which the child may ordinarily attend.

That the mother shall do all acts and things necessary to authorise the father to obtain copies of all of the child’s school reports, photographs, notifications of school events and these orders shall be sufficient authority for him to do so.

That the mother shall forthwith notify the father of the child’s General Practitioner and any other medical specialists and associated health practitioners that the child may attend upon from time to time.

That the mother shall do all acts and things necessary to authorise the father to contact the child’s General Practitioner and any other medical specialists and associated health practitioners the child may attend upon from time to time to discuss the child’s condition or treatments if any, and these orders shall be sufficient authority for him to do so.

The father shall be permitted to send the child letters, cards and/or presents, no greater than three times per annum. To facilitate this Order the mother shall within 28 days inform the father of a postal address to which such material can be sent.

Property

That within 28 days of the making of these orders, the Respondent do all such acts and things and sign all necessary documents so as to transfer to the Applicant all his right title and interest in the former matrimonial home situate at B Street Town A NSW and more specifically described as folio …86.

10.

That contemporaneously with the transfer set out above the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the subject property and replace it with a mortgage to the party acquiring the property alone.

11.

That the Applicant be declared the sole owner in law and equity of the C motor vehicle, Registration Number ….

12.

That within 28 days of the making of these orders, the parties do all such acts and things and sign all necessary documents so as to close the Westpac bank account (…59) and to pay the balance remaining, if any, to the Applicant.

13.

That each party be declared the sole order in law and equity of all items of personalty, chattels and financial resources in their name, possession or control not otherwise dealt with in these Orders including but not limited to bank accounts, any choses in action and superannuation benefits.

14.

That the parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

15.

That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court in which these Orders are made be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

16.

That each party has liberty to apply in relation the implementation or enforcement of these Orders upon seven days’ notice.

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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