Levandi & Levandi (No 2)

Case [2023] FedCFamC1F 117

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Levandi & Levandi (No 2) [2023] FedCFamC1F 117

File number SYC 1109 of 2020
Judgment of WILSON J
Date of judgment 10 March 2023
Catchwords FAMILY LAW – PARENTING – PROPERTY – fact specific case – there is no precedent value in this decision.
Legislation

Child Support Assessment Act 1989 (Cth)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(1)(a)

Family Law Act 1975 (Cth) ss 4(1), 4AB(1), 60B(1)(a)-(d), 60B(2)(a), 60CA, 60CC(1), (2)(b), (2A) and (3)(a)-(l), 61B, 61C(1), 61DA(1), (2)(a)-(b) and (4), 69ZT, 75(2), 79, 81, 90XT(1)(a) and (4) and 106A

Family Law (Superannuation) Regulations 2001 (Cth) Part 6

Cases cited

Alston & Alston [2021] FedCFamC1A 96

Bosanac v Commissioner of Taxation [2022] HCA 34

Cao & Trong [2022] FedCFamC1F 754

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Honeysett v R (2014) 253 CLR 122

AJO & GRO (2005) 33 Fam LR 134

Jabour v Jabour (2019) 59 Fam LR 475

Johnson v Johnson (1999) 26 Fam LR 475

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Pettitt v Pettitt [1970] AC 777

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Trevi v Trevi [2018] FamCAFC 173

Trustee of the Property of Lemnos v Lemnos (2009) 41 Fam LR 120

Division Division 1 First Instance
Number of paragraphs 206
Date of last submissions 24 November 2022
Date of hearing 7, 8, 9, 10 and 24 November 2023
Place Sydney
Counsel for the Applicant: Mr S. Gardiner
Solicitor for the Applicant: Nicole Evans Lawyers
Counsel for the Respondent: Mr D. Dura
Solicitor for the Respondent: Barkus Doolan Winning
Counsel for the Independent Children's Lawyer: Ms T. Messner
Solicitor for the Independent Children's Lawyer: Legal Aid NSW
SYC 1109 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN

MS LEVANDI

Applicant
AND

MR LEVANDI

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by

WILSON J

DATE OF ORDER

10 March 2023

THE COURT ORDERS THAT –

PARENTING

1.All extant interim parenting orders in relation to the children X born 2007 (“X”) and Y born 2009 (“Y”) (and collectively hereunder referred to as “the children”) are hereby discharged.

Parental responsibility

2.The mother and father have equal shared parental responsibility for, and must make joint decisions about, major long term issues affecting the children including but not limited to decisions about –

(a)each child’s education (both current and future);

(b)each child’s religious and cultural upbringing;

(c)each child’s health;

(d)each child’s extra-curricular and sporting activities;

(e)each child’s name; and

(f)changes to each child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

Live with

3.The children shall live with the mother.

Spending time

X

4.X will spend time with the father in accordance with X’s express wishes and to that end, if X expresses to…

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AGLC
Levandi & Levandi (No 2) [2023] FedCFamC1F 117
Case
[2023] FedCFamC1F 117
Decision Date

CaseChat Overview and Summary

In Levandi & Levandi (No 2), the Family Court was tasked with determining parenting arrangements for the parties' two children, as well as making orders in respect of property settlement. The father was 48 and the mother 46 at the time of the trial. The children, a 15-year-old son and a 13-year-old daughter, were born in 2007 and 2009, respectively. The parents separated in early 2020 and Family Court litigation was initiated in February 2020. The mother sought sole parental responsibility, while the father sought equal shared parental responsibility.

The court found that equal shared parental responsibility was in the best interests of the children, noting that both parents were good parents with deep care and concern for their children. The court rejected the mother's proposal for sole parental responsibility, finding that it would likely result in the mother acquiring sole parental responsibility due to disagreements between the parents. The court also ordered that the father's time with the eldest child be in accordance with the child's wishes and that the father's time with the youngest child be increased from three nights to four.

In relation to property settlement, the court considered the significance and effect of an inheritance the husband received, as well as the disparity in the parties' earning capacity. The court found that the inheritance did not significantly impact the property pool, and that the disparity in earning capacity was not a decisive factor in determining property settlement. The court made orders for property settlement that took into account the parties' assets and liabilities, as well as their respective contributions to the relationship.

The court's final orders included equal shared parental responsibility for the children, with specific arrangements for the father's time with the children. In relation to property settlement, the court made orders that divided the parties' assets and liabilities, as well as orders for child support and travel arrangements. The court also made orders for communication between the parents and the children, changeovers, and other matters relating to the children's welfare.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is possible to now express certain conclusions that must necessarily be reached to determine the parenting aspect of this litigation.CONCLUSIONS ON PARENTING In my judgment it is in the best interests of the children for both parents to have equal shared parental responsibility for the children. The order proposed by the mother will in all practical respects become an order for sole parental responsibility because it is highly likely – dare I say the probability is higher than reasonably foreseeable – that the parents will argue then disagree over something thus invoking the mother’s proposal such that the mother acquires sole parental responsibility. I take the view that both parents are good parents with deep care and concern for their children. It would be wrong and contrary to the best interests of the children to shut out the father from being involved in matters of parental responsibility. The mere fact that the presumption in s 61DA has been rebutted does not mean I am divested of power to make an order for equal shared parental responsibility if persuaded that the making of such an order is in the best interests of the children. I take the view that an order for equal shared parental responsibility is in the best interests of the children. So far as time for the father is concerned, the evidence points in one direction in my view, namely – (a)in relation to the eldest child, to have time with the father in accordance with the wishes of the eldest child; and(b)in relation to the youngest child, for the father’s time with her to be increased from three nights to four. Any thinking that the daughter cannot cope with more than three nights is devoid of logic. The family consultant in her first report recommended five nights, then retreated to three for the most unsatisfactory reason that the mother might not be satisfied with an order for five nights. Whether the mother is unhappy with four or five nights is wholly irrelevant. The issue is whether four or five nights is in the best interests of the youngest child. I am persuaded that four is. The father invited me to make an order for the father to have a prescribed amount of time with the eldest child so that, by such an order being made, the eldest child knows he is part of his family. I decline to do that. Any such order if made is likely to provoke enforcement. Further, the evidence of the family consultant was not in favour of such an order. In those circumstances, I make orders for equal shared parental responsibility for the children in favour of both parents. I order the father’s time with the eldest to be in accordance with the eldest child’s wishes. I order the father’s time with the youngest to increase from three to four nights. Otherwise, I make orders in relation to parenting orders as recited in the first few pages of these reasons. SECTION 79 APPLICATION IN RESPECT OF PROPERTY The parties’ statement of assets and liabilities (colloquially but incorrectly called their “balance sheet”) identified the parties’ known assets to be around $4m. The details were as follows[90] – [90] These were taken from agreed exhibit 1.

Ratio Decidendi

Legal Principle Established

Two major issues in the parties’ dispute about property alteration orders were first, the significance and effect of an inheritance the husband received and second, the disparity in the parties’ earning capacity.A BRIEF FACTUAL NARRATION What follows is a précis narration of certain formal particulars about the parents and the children, expressed as neutrally as circumstances permit. Contentious matters such as disputed evidence in relation to family violence, attitudes to parenting and such like have been set out below, usually in the context of the legislative provision to which that particular item of evidence was relevant. At the date of the trial of this proceeding, the father was 48 years of age and the mother was 46 years of age. The husband and wife began living together when they resided in the United States of America in 2004. They married in 2005. In 2006 they moved back to Australia, settling in Sydney, New South Wales, upon the husband taking up work as a finance professional and the wife taking up work also as a finance professional. The parties’ eldest child was born in 2007. He is now 15. The parties’ youngest child was born in 2009. She is now 13. The husband and wife separated under one roof in early 2020, although the precise date of separation differed. Family Court litigation was commenced in February 2020. Both children reside primarily with the mother. The eldest child has spent no time with his father since May 2020. The youngest child spends alternate weekends with her father. Three episodes of family violence were alleged.[4] In the passages below I have addressed them, especially their application in any consideration of s 60CC(2)(b) of the Family Law Act.[4] Transcript 8 November 2022 T 20 – T21. It is appropriate to first deal with the applications for parenting orders.EQUAL SHARED PARENTAL RESPONSIBILITY The mother sought orders for equal shared parental responsibility but she also sought orders to the effect that she would have the final say if any disagreement emerged in their decision making. The precise terms of the orders sought by the mother were as follows – Parental Responsibility 1.That the Mother and Father have equal shared parental responsibility for the children [X] born […] 2007 (“[X]”) and [Y] born […] 2009 (“[Y]”) (hereafter referred to as “the children”).2.That the Mother and Father have equal shared parental responsibility for major long term issues relating to the children’s health, religion, education, but when making a decision about major longterm issues, the Mother shall:a.advise the Father in writing at least 30 days before any decision is made and shall consider any written response made by the Father which is to be provided within 7 days of the Mother’s advice and the Mother act in good faith in considering his input into the issue/s; andb.should there be no agreement, then the Mother shall make the decision/s and advise the Father, in writing, of the decision/s within 5 days of her decision being made.3.The Mother have responsibility for making decisions for the day to day care of the children when they are in her care and the Father have responsibility for making decisions for the day to day care of the children when they are in her care. Live With4.The children shall live with the Mother. Spend Time Arrangements with the Father5.That [X] shall spend time with the Father in accordance with his wishes.6.That [Y] shall spend time with the Father by agreement with the Mother, and failing agreement, as follows: TERM TIME6.1. During all school terms referable to the school at which [Y] attends each alternate weekend from the conclusion of school / 3.25pm on Friday until the commencement of school / 8.00am on the following Monday.TERM 1, 2 & 3 SCHOOL HOLIDAYS6.2. During the Term 1, Term 2 and Term 3 school holidays of the NSW gazetted school holiday period, [Y] shall spend time with the Father, as agreed between the parties in writing, and failing agreement, for any 5-day (four night) period. 6.3.That for the purpose of Order 6.2, the school holiday period shall commence on the last day of the School Term for the respective child who commences their school holidays first.TERM 4 – CHRISTMAS SCHOOL HOLIDAYS6.4.During the Term 4 Christmas school holidays, [Y] shall spend time with the Father, as agreed between the parties in writing, and failing agreement, for 3 x block periods of 4 nights (1 x block in December and 2 x blocks in January) with such nights to be nominated by the Mother at least 21 days prior to the commencement of that school holiday period. Orders for Special Occasions7. Christmas Holidays:7.1. That during the Christmas school holiday period, [Y] spend time with the Father from 5.00pm on 25 December until 5.00pm on 26 December each year. 8. Easter Holidays:8.1. Notwithstanding any other Order, and for the purposes of Easter celebrations, [Y] shall spend time with the Mother from 9.00am on Good Friday until 8.00pm on Easter Monday in odd numbered year, and in each even numbered year with the Father.9. Mother’s Day and Father’s Day9.1. That [Y] spend time with each parent as follows:-(a)With the Father, from 9am on Father’s Day until 4pm on Father’s Day; and (b)With the Mother, from 9am on Mother’s Day until 4pm on Mother’s Day. 10. Birthdays 10.1. Mother’s and Father’s birthdays:(a)That [Y] spend time with the Mother or Father, on each parent’s respective birthdays, as follows:(i)In the event that either parent’s respective birthday falls on a school night, and [Y] is not otherwise spending time with that parent in accordance with the ordinary spend time arrangements, then after school (or after any respective extra-curricular activity that occurs on that said day) to approximately 8.30pm that evening; and (ii)In the event that either of the parent’s birthdays fall on a weekend that [Y] is not otherwise spending time with that parent, (in accordance with the ordinary spend time arrangements), from 5pm to approximately 8.30pm that evening, with that parent.10.1. [Y’s] birthday:(a)That in addition to the time referred to above, [Y] shall spend time with the Mother or Father, on her respective birthday, as follows:(i)In the event that [Y’s] birthday falls on a school day and [Y] is not otherwise spending time with that parent (in accordance with the ordinary spend time arrangements), then from 7am that day until 8.45am with that parent, or until school otherwise commences that day;(ii)In the event that [Y’s] birthday falls on a weekend that [Y] is not otherwise spending time with that parent, (in accordance with the ordinary spend time arrangements), [Y] is to spend time with that parent, from 7am until 9.30am.Communication 11. That each parent be at liberty to communicate with the children by telephone, email and all other forms of electronic communication (including Skype and Facetime) at all reasonable times on all days when the children are in the care of the other parent, and each parent must not restrict or interfere with and must positively encourage and facilitate each child receiving and initiating telephone and electronic communication to and from the other parent.Changeovers 12. That less otherwise agreed in writing between the Father and the Mother, the Father is to collect [Y] from school (if physically attending school) or [Suburb G] McDonald’s car park (if home schooling or a non-school day), or at the midpoint of an agreed public location of where both parties reside in the event a parent moves residence13.That unless otherwise agreed in writing between the Father and the Mother, the Mother is to collect [Y] from [Suburb G] McDonald’s car park, or at the midpoint of an agreed public location of where both parties reside in the event a parent moves residence, at such times when she is not delivered by him to school at the conclusion of the Father’s time with [Y].Injunctive relief 14. That pursuant to section 68B of the Family Law Act 1975, the Father be restrained from entering or remaining within 100 metres of the Mother’s primary residential address, without the prior written consent of the Mother. The Mother’s current primary address is [F Street, Suburb G] NSW.Child Support Departure Order 15. That pursuant to Section 124 of the Child Support (Assessment)Act 1989, [Mr Levandi] provide non-periodic child support to [Ms Levandi] for the children, [X] (“[X]”) and [Y] (“[Y]”), by way of payment of all school fees for [X] and [Y], while the children continue to attend their respective schools (being [E School] and [R School]).16. That such payment is to commence from Term 3 of the 2022 school year.17.The annual rate of child support is not to be reduced by the child support provided.Travel 18. That unless otherwise agreed in writing, both parties are permitted to travel overseas with the children during the time the children are living with that party, provided that each party notify the other party not less than fourteen (14) days’ notice of the proposed travel arrangements, including dates and times of arrival, itinerary and contact telephone number and address of where the children will be accommodated.19.That the Mother is at liberty to nominate in writing to the Father with at least 30 days’ written notice that she intends to spend a two-week holiday period with the children on two occasions per year.Passports 20. Within 7 days of a request from the other parent to do so, each parent shall do all acts and things and sign all documents so as to renew the current passports for each child, and costs of renewal shall be paid by the parties in equal shares as and when the same fall due and payable.21.The Mother shall hold the children’s passports and shall provide the children’s passports to the Father within 7 days of a request for same by the Father in order to facilitate overseas travel permitted in compliance with these Orders or the planning of such travel (including the booking of travel tickets and/ or the obtaining of visas.22.The Father shall return the children’s passports to the Mother at the next changeover following his return to Australia.23.Within 7 days of a request from the other parent to do so, each parent shall do all acts and things and sign all documents so as to apply for travel and entry visas as may be required for a child whom a parent intends to take or send outside the Commonwealth of Australia in accordance with the provisions of these Orders.Other 24. With out admissions, neither party shall physically discipline (including smacking) the children or either of them.25.That unless otherwise agreed in writing between the Mother and Father, that the Mother be permitted to take the child [X] to all State, National and Club sporting tournaments that he will participate in from the date of these Orders.26.That while the Father be permitted to attend any such sporting tournament that [X] is competing in for the purpose of Order 25, unless otherwise agreed in writing, both children are to reside and stay with the remain in the care of the Mother at all times, for the duration of the tournament.27.That both parents shall be at liberty to attend all official school functions and events to which parents are invited or are expected to attend along with all special event days in which the children, or any of them, may be involved or is participating.28.Both parents shall be at liberty at all times to attend all sporting and other extracurricular events and activities in which the children, or any of them, are involved or is participating (including those events and activities which may occur on days when the children are living with the other parent.29.Both parents shall provide all authorities and give all necessary consents to ensure that all treating medical and health care practitioners for each child (including but not limited to general practitioner, paediatrician, specialists, counsellors and therapists) are authorised and directed to communicate with, and provide information and copies of documents directly to, the Mother and the Father upon either party’s respective request and at the requesting party’s own cost.30.Forthwith upon the making of these Orders and continuously thereafter, the Mother and Father shall provide all authorities and give all necessary consents to ensure that the principal and all staff at each child’s school are authorised and directed to communicate with and provide information and copies of documents directly to, the Mother and Father upon either party’s respective request and at the requesting party’s own cost.31.Each parent must notify the other parent as soon as reasonably practicable and within 24 hours of all changes to their residential address and/ or landline telephone number and/ or mobile telephone number and/ or email address and each parent shall provide to the other particulars of each new residential address, landline telephone number, mobile telephone number and email address.32.Each parent must notify the other as soon as practicable and within 24 hours of all changes to the mobile telephone number and email address of each child.