FEDERAL CIRCUIT COURT OF AUSTRALIA
LEWINGTON & LEWINGTON [2018] FCCA 960
Catchwords:
FAMILY LAW – Children – final parenting orders for children aged 10 and 8 years – where mother seeks sole parental responsibility– where father seeks equal parental responsibility with aspects of sole parental responsibility – where mother has been the children’s primary carer – where father seeks an order for equal time – where mother opposes that order – where parental conflict is high – where there exists no mechanism for resolving parenting disputes – order made for mother to have sole parental responsibility and children to live with the mother and spend substantial and significant time with the father – court determines orders to be in children’s best interests.PROPERTY SETTLEMENT – Final property Orders – adjustment of property interests under section 79 of the Family Law Act 1975 (Cth) – issues in relation to contributions made by wife’s family – whether third party loans exist and quantum – adjustment of interests in parties’ non-superannuation assets as to 67% in wife’s favour and 33% in the husband’s favour – each party to retain his or her interest in superannuation.
Legislation:
Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 61DAC, 65D, 65DAA(3), 65DAA(5), 75(2), 79, 79(2), 79(4)
Cases cited:
Stanford v Stanford (2012) 293 ALR 70, [2012] HCA 52, (2012) FLC 93-518
In the Marriage of Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-593
Russell v Russell (1999) FLC 92-877
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA395, (2003) FLC 93-143
Martin & Newton [2011] FamCAFC 233, (2011) FLC 93-490
Martin & Crawley [2012] FamCA 103
Dickons & Dickons (2012) 50 Fam LR 244
Norbis v Norbis (1986) 161 CLR 513
Chapman & Chapman (2014) 51 Fam LR 176Vadisanis & Vadisanis (2014) 53 Fam LR 345
Calverly v Green (1984) 155 CLR 242, 56 ALR 483, 9 Fam LR 940
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Vadisanis & Vadisanis [2015] FamCA 161
Federal Commissioner of Taxation v Radilo Enterprises Pty Ltd (1997) 142 ALR 305
Ferguson v O’Neil [1943] VLR 30
BH & PH [2006] FMCAfam167
Maddock & Anor (No 2) [2011] FMCAfam 1340
Pelly & Nolan [2011] FMCAfam 530
Af Petersens & Af Petersens (1981)7 Fam LR 402
Antmann and Antmann (1980) 6 Fam LR 560, [1980] FLC 90-908
Ascot Investments Pty Limited v Harper (1980) 6 Fam LR 591, (1981) 33 ALR 631
Prince & Prince (1984) 54 ALR 567
Albany (1980) 6 Fam LR 461, [1980] FLC 90-905
Kelly (1981) 7 Fam LR 762, [1981] FLC 91-108
Quirk (1983) (unreported)
Kimber (1981) 7 Fam LR 483, [1981] FLC 91-085
Kowaliw [1981] FLC 91-092
Pockran & Crewes [1983] FLC 91-311
Biltoft & Biltoft (1995) 19 Fam LR 82
Ascot Investments Pty Ltd v Harper & Anor (1981) 148 CLR 337
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- AGLC
- LEWINGTON & LEWINGTON [2018] FCCA 960
- Case
- [2018] FCCA 960
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children in light of the significant parental conflict and the mother's primary carer role. This involved deciding on the appropriate level of parental responsibility and the extent of time the children would spend with each parent. In relation to the property settlement, the court had to ascertain the extent of the wife's family's financial contributions and whether these constituted loans requiring repayment, and then make an equitable adjustment of the parties' property interests.
Regarding the parenting orders, the court ultimately made orders for the mother to have sole parental responsibility, with the children to live with her. However, the orders included detailed provisions for the father to spend substantial and significant time with the children, and for the mother to keep the father informed of major decisions concerning their health, education, and welfare. For the property settlement, the court adjusted the interests in the parties' non-superannuation assets, awarding 67% to the wife and 33% to the husband, with each party retaining their respective superannuation entitlements. The court also made specific orders regarding the discharge and refinancing of mortgages and the indemnification of the husband against certain debts.
Orders
Orders of the court
(1) The mother shall have sole parental responsibility for the CHILDREN X born on (omitted) 2007 and Y born on (omitted) 2008 (“the children”)
(2) Notwithstanding Order 1, the mother shall advise the father in writing via email, or text, or via an application[1] of any major decisions with respect to the children concerning:
(a) Any change of the children’s residential address with the mother to advise the father of any proposed change of address 7 days prior to that occurring;
(b) Any significant health issues concerning either of the children including:
(i) The current medical practitioner each child attends upon;
(ii) The current dental practitioner each child attends upon;
(iii) Details of any treatment prescribed and/or provided to either child by a medical practitioner including any prescribed medication within 2 days;
(iv) Details of any treatment prescribed and/or provided to either child by a dental practitioner within 2 days;
(v) Details of any referral to and appointments with a medical specialist for either child within 2 days and the mother shall authorise the father to speak with that medical specialist and to attend any appointment scheduled with that medical specialist;
(vi) Details of attendance by either child at a hospital immediately upon that occurring and the mother shall authorise the father to speak with any treating medical practitioner and to attend the hospital;
(vii) Details of any treatment recommended and/or provided for Y with respect to dietary and/or weight issues within 5 days.
(3) The mother shall forthwith do all things and sign all necessary documents to authorise the father to receive all relevant information from the children’s school including newsletters, invitations to attend school functions and the like.
(4) Neither party shall change the school each child currently attends without the consent in writing of the other party or order of the Court.
(5) The children shall live with the mother.
(6) The children shall spend time with the father as follows:
During school terms:
(a) Commencing 4 May 2018 from after school Friday until before school Monday each alternate weekend; and
(b) Commencing 8 May 2018 from after school on Tuesday until before school on Wednesday each week.
(7) For one half of all term school holiday periods (save for the Christmas/January school holidays) as agreed between the parties but failing agreement for the first half in years ending in zero or an even number and for the second half in years ending in an odd number.
(8) For one half of the Christmas/January school holiday period as agreed between the parties but failing agreement for the first half in years ending in zero or an even number and for the second half in years ending in an odd number.
(9) The school holidays are deemed to commence at 5:00 pm on the day which is gazetted[2] as the last day of the school term and will conclude at 9:00 am on the day before the child returns to school.
(10) One half of the Christmas/January school holiday period is to be calculated by dividing by two the total number of days the child does not attend school. If this is an uneven number of days the father is to have the additional day in holidays falling or commencing in years ending in zero or an even number and not those in other years.
(11) Should the children be in the mother's care on Christmas Day, their respective birthdays, the father's birthday or on Father's day, they shall spend time with the father on such days from 4:00pm to 8:00pm.
(12) Should the children be in the father's care on Christmas Day, their respective birthdays, the mother's birthday or on Mother's day, they shall spend time with the mother on such days from 4:00pm to 8:00pm.
(13) By consent the children shall be raised in the (omitted) faith.
(14) Notwithstanding these orders the children will spend time with their mother during any (nationality omitted) or (omitted) religious days from 20 March from 6:00 pm to 9:00 am on 21 March, from 20 October at 6:00pm to 9:00am 21 October and from 21 October at 6:00pm to 9:00am on 22 October in each year.
(15) During school terms the changeovers for the children shall occur at school.
(16) During school holidays or such other times when changeover cannot occur at school, changeover for the children shall occur at a half way point agreed between the parties or failing agreement at the (omitted) shops.
(17) Each party will maintain and keep clean all the children's clothing, toys and equipment to the effect that each party has one set each of such items.
(18) By consent:
(a) In the event of a medical emergency of either child the caring parent shall notify the other parent immediately as soon as practicable following such emergency.
(b) The mother shall be permitted to remove the children from the jurisdiction of Australia for the purpose of travelling to visit overseas relatives up to twice in each year upon giving the father three months' notice of her intention to travel and providing him with a full travel itinerary including flights, accommodation, and contact details where possible; and
(c) Each party shall facilitate and encourage unfettered telephone time with the children twice weekly during the school holidays on Wednesday and Thursday from 7pm-7:30pm
Property Orders:
(19) The husband shall forthwith withdraw all caveats and/or other notifications against the titles to the wife's properties situate at Property A, Property B and Property C (“the properties”).
(20) Within 60 days of notice being received by the wife of the husband's compliance with order 19 hereof the wife shall pay to the husband the sum of $904,474 (“the Capital Sum”).
(21) Pending the wife's compliance with order 20 hereof, the wife is restrained from dealing with the properties in any manner whatsoever otherwise than for the purpose of complying with order 20.
(22) Upon payment of the Capital Sum by the wife to the husband the Court declares that otherwise each party is the sole, legal and beneficial owner of all property in his or her respective possession, custody or control including but not limited to the real property in the name of that registered proprietor and superannuation entitlements.
(23) The parties shall do all things necessary and sign all documents to permit the wife to discharge the mortgage in joint names secured against the Property C property at the wife’s expense and the wife shall refinance that mortgage in her sole name.
(24) Otherwise the wife shall indemnify the husband and keep him indemnified with respect to any mortgage in the wife’s sole name, the (omitted) Bank loan, the personal loan to Ms A, the debt of $80,000 due to the wife’s parents and debut of $28,000 due to the wife’s brother.
(25) The parties have liberty to apply with respect to the implementation of these orders.
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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