FAMILY COURT OF AUSTRALIA
| LENNON & LENNON | [2011] FamCA 571 |
| FAMILY LAW – CHILDREN – where the mother seeks orders that she have sole parental responsibility for the parties’ five children and that the children spend alternate weekends with the father – where the father seeks an order that the children spend alternating fortnights with each parent – where the parties are significantly at odds in terms of their parenting practices – where there are significant issues in relation to the children’s views, the father’s capacity to provide for the physical and emotional needs of the children and the father’s attitude to parenting – whether it is in the children’s best interests to rebut the presumption of equal shared parental responsibility – whether there should be change in the amount of time the children spend with their father. FAMILY LAW – PROPERTY – Contributions – where the husband made significant initial contributions – where one of those contributions was a half share in a property now worth $1.75million – where that property provided the foundation for the parties’ successful produce business – where the wife’s contributions to the parties’ children and business were greater than the husband’s from April 1999 onwards – where the wife’s contributions to the parties’ children post-separation has been significantly greater than the husband’s – whether the wife’s contributions later in the marriage and post-separation outweighs the husband’s initial contributions – where the contributions assessed in proportion of 55 per cent to the husband and 45 per cent to the wife – whether s 75(2) factors favour an adjustment in favour of the wife – where the wife will have sole parental responsibility for the children, the youngest of whom will turn 18 in 2021 – where the wife’s ability to earn remunerative income is significantly constrained by her care of the parties’ children – where s 75(2) factors favour an adjustment of 10 per cent in favour of the wife. FAMILY LAW – PROPERTY – settlement – where the parties’ property consists of two farms in Town 1 and several farming businesses – where the parties ran successful farming enterprises on the properties throughout their marriage – where the property is to be distributed in the proportion of 55 per cent to the wife and 45 per cent to the husband – where the parties are agreed that the properties and businesses will be liquidated – where the parties ordered to provide minutes of consent giving effect to these Orders |
| Child Support (Assessment) Act 1989 (Qld) |
| Aleksovski & Aleksovski (1996) FLC 92-705 |
Hides & Hatton (1997) FLC92-759
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- AGLC
- Lennon & Lennon [2011] FamCA 571
- Case
- [2011] FamCA 571
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the presumption of equal shared parental responsibility should be rebutted in favour of the mother, and whether the quantum of time the children spent with their father should be altered. In relation to property, the court was required to determine the appropriate distribution of the parties' assets, considering their respective contributions throughout the marriage and post-separation, and whether any adjustment was warranted under section 75(2) of the Family Law Act 1975 (Cth) due to factors such as the wife's ongoing care of the children.
Murphy J found that the presumption of equal shared parental responsibility was rebutted in the best interests of the children, citing concerns about the father's parenting capacity and attitude. Consequently, the mother was granted sole parental responsibility for major long-term issues, with specific provisions for consultation with the father. The children were ordered to live with the mother, and the father was to have time with the children on alternate weekends during school terms and half of all school holidays. Regarding property, the court assessed the husband's initial contributions, including a property that formed the foundation of their successful business, as 55 per cent, and the wife's contributions from April 1999 onwards, particularly her greater contributions to the children and business, and her post-separation care of the children, as 45 per cent. The court also applied section 75(2) factors, noting the wife's constrained earning capacity due to her care of the children, and ordered a further adjustment of 10 per cent in her favour.
The court declared that the presumption of equal shared parental responsibility was rebutted and ordered that the mother have sole parental responsibility for major long-term issues, subject to specific consultation requirements with the father. The children were ordered to live with the mother, with defined time arrangements for the father. The parties' property was ordered to be distributed 55 per cent to the wife and 45 per cent to the husband, with directions for the liquidation of assets and the filing of agreed minutes of order. The wife's application for a child support departure order was dismissed.
Orders
Orders of the court
IT IS DECLARED THAT:
1.
The presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (Cth) (“the Act”) is rebutted in the best interests of the children:
a. Z, born … May 1995
b. J, born … January 1997
c. T, born … January 2000
d. S, born … September 2001
e. B, born … June 2003
IT IS ORDERED THAT:
Parental Responsibility
2.
The mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Act (as amended)) in respect of the children, save that the mother shall, prior to making the sole ultimate decision about any such issue:
a. Use her best endeavours to advise the father in writing of the decision intended to be made;
b. Seek the father’s written response in relation thereto;
c. Consider, by reference to the best interests of the children, any such response prior to making any such decision;
d. Advise the father in writing as soon as reasonably practicable of her ultimate decision.
3.
Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
a. Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the children;
b. Any school which the children attend;
c. The Director of any extra-curricular school or other activity in which the children are involved,
to provide to the other party such information as might reasonably be required about the children together with any report, assessment or other such document provided to a parent in respect of the children.
4.
Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the children as soon as reasonably possible after its occurrence.
5.
Each of the parties shall advise the other and keep the other advised of:
a. Their residential address;
b. Telephone numbers at which they and the child can be contacted;
c. Any email address to which the child can have access,
and shall notify any changes in any such details within 48 hours.
Live With and Time
6.
The children shall live with the mother.
7.
J, T, B and S shall spend time with the father as follows:
During School Term
a. Every second Thursday from the conclusion of school until the commencement of school the following Monday with the first such period to commence on Thursday 21 July 2011.
During School Holidays
b. J, T, B and S will spend half of all gazetted New South Wales school holidays with each parent, as follows, commencing in 2011 and alternating each year thereafter:
i. First term holidays with the mother;
ii. Second term holidays with the father;
iii. Third term holidays with the mother;
iv. Pre-Christmas with the father;
v. Post-Christmas with the mother.
To facilitate changeover for the purposes of subparagraphs (d) and (e), the parent who has care of the children, will drop them at the other parent’s residence at 5pm on 26 December.
Mother’s and Father’s Day
c. On Mother’s Day, the children, should they be staying with the father, may be collected by the mother at 9am and returned to the father by 5pm.
d. On Father’s Day, the children, should they by staying with the mother, may be collected by the father at 9am and returned to the mother by 5pm.
8.
The children shall be at liberty to communicate with the parent with whom they are not spending time at any time and when the children express a wish to contact that parent, the other parent shall use his or her best endeavours to facilitate such call.
IT IS FURTHER ORDERED THAT:
9.
The property of the parties or either of them within the meaning of s 79 of the Family Law Act 1975 be distributed in the proportion 55 per cent to the wife and 45 per cent to the husband.
10. As to give effect to the said distribution, the parties shall, within 21 days of the date of this Order, file by way of joint communication forwarded by email to the Associate to Justice Murphy … @familycourt.gov.au, agreed minutes of order, and, failing agreement, the matter be listed before Murphy J at a date and time to be advised.
IT IS FURTHER ORDERED THAT:
11. The wife’s application for a child support departure order is 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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