FAMILY COURT OF AUSTRALIA
| LOKARE & BAUM | [2019] FamCA 196 |
| FAMILY LAW – CHILDREN – Application for final parenting orders – Where the father seeks orders that the parties have shared parental responsibility – Where the father seeks orders that the child spend equal time between the mother and himself – Where the mother seeks orders that she have sole parental responsibility for the child – Where the mother seeks orders that the child live with her and spend graduating time with the father – Where the Independent Children’s Lawyer seeks orders that the mother have sole parental responsibility for the child, except with regard to her Aboriginal culture and development – Where the Independent Children’s Lawyer seeks orders that the child live with the mother and spend graduating time with the father – Where the mother has been the child’s primary carer since her birth – Where the degree to which the father has sought to maintain a relationship with the child is disputed – Where the father asserts that the mother has failed to encourage the child’s relationship with him – Where the child is Aboriginal, as through the father’s L bloodline – Where the father asserts that the mother has failed to encourage the child’s Aboriginal cultural development and identity – Court finds that the mother has supported the child’s relationship with the father – Court finds that the mother has encouraged the child’s Aboriginal cultural development and identity – Court orders that the mother have sole parental responsibility for the child, except in relation to her Aboriginal culture and development, the responsibility for which the parties shall share – Court orders that the child live with the mother and spend graduating time with the father. FAMILY LAW – PROPERTY – De facto relationship –Where the parties seek property settlement orders pursuant to s 90SM of the Act – Where the husband seeks an order that his superannuation be allocated to him – Where the wife seeks orders that real estate be sold – Where the wife seeks orders that she receive 80 per cent of the proceeds of that sale, as well as certain lump sums in respect of, what the wife contends is joint property, that has been expended by the husband to date and costs orders that have been made against the husband to date – Where the wife seeks an order for lump sum child support – Where the Court finds that the wife made significant financial and non-financial contributions throughout the parties’ relationship and following separation – Where the mother continues to be the child’s primary carer – Orders made for the sale of real property – Orders made for the wife to receive 72.5 per cent of the sale proceeds, after payment of the mortgage and a debt of the parties to her parents – Orders made for the husband to pay sums referable to cost orders previously made in favour of the wife – Orders for a sum to be… |
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- AGLC
- Lokare & Baum [2019] FamCA 196
- Case
- [2019] FamCA 196
- Decision Date
CaseChat Overview and Summary
The court was required to determine the most appropriate parenting orders for Z, considering the child's best interests, including the mother's role as primary carer, the father's asserted failure to maintain a relationship and encourage cultural development, and the child's Aboriginal heritage. In relation to property, the court needed to assess the contributions of both parties to the relationship and post-separation, and to determine the division of assets, including real estate and superannuation, and address outstanding debts and costs orders.
McClelland DCJ found that the mother had supported the child's relationship with the father and had encouraged her Aboriginal cultural development and identity, contrary to the father's assertions. Consequently, the court ordered that the mother have sole parental responsibility for the child, except in relation to her Aboriginal culture and development, for which the parties would share responsibility. The child was ordered to live with the mother, with graduating time to be spent with the father, with detailed provisions for school terms, holidays, and cultural activities, including travel to the Northern Territory for the father to engage with his L family. In the property proceedings, the court ordered the sale of the parties' real property, with the wife to receive 72.5 per cent of the net proceeds after payment of the mortgage and a debt to her parents. The husband was also ordered to pay sums referable to costs orders made in favour of the wife and to reimburse the wife for joint property expended on legal fees. The husband was to retain his superannuation.
Orders
Orders of the court
Parenting orders
1.
By consent, all previous parenting orders in relation to the child, Z, born … 2011 (“the child”), be discharged.
2.
The mother have sole parental responsibility in relation to all major long-term issues concerning the child, except her Aboriginal culture and development.
3.
By consent, the parties have shared parental responsibility relating to decisions regarding the child’s Aboriginal culture and development, NOTING that both parents acknowledge that as the child’s Aboriginal parent it is the father’s cultural responsibility to provide for her upbringing and education as an L child.
4.
By consent, in exercising sole parental responsibility pursuant to order 2 herein:
(a) The mother shall notify the father, in a timely manner, in writing prior to making any major long-term decision in relation to the child;
(b) The mother shall take into account any views expressed by the father in relation to that decision, provided such views are communicated to the mother in a timely manner;
(c) The mother shall make a genuine effort to reach agreement with the father; and
(d) The mother shall notify the father in writing as soon as practicable after making the final decision.
5.
The child live with the mother.
6.
By consent, while the father resides in Sydney, the child shall spend time with the father as follows (unless otherwise agreed between the parties):
(a) During school terms:
(i) From the conclusion of school until 6.00 pm each Tuesday and Thursday; and
(ii) On each alternate weekend from 10.00 am to 6.00 pm on Saturday and from 10.00 am to 6.00 pm on Sunday, with such time to extend from 10.00 am on Saturday until 6.00 pm on Sunday when both parents agree that the child is ready to spend overnight time with the father;
(b) During the Term 1, 2 and 3 school holiday periods, on seven (7) consecutive days from 10.00 am until 6.00 pm each day, commencing on the second Saturday of the school holiday period and concluding on the following Friday, with such time to include overnight periods when both parents, acting reasonably, agree that the child is ready to spend overnight time with the father;
(c) During the Term 4 school holiday period, as agreed between the parents in writing, and failing agreement, three (3) blocks of four (4) consecutive days, being Monday, Tuesday, Wednesday and Thursday in each of the last three (3) weeks of the school holiday period, from 10.00 am to 6.00 pm on each of those days, with such time to include overnight periods when both parents, acting reasonably, agree that the child is ready to spend overnight time with the father;
(d) At other times as agreed between the parents, with the mother to accommodate all requests for the father to spend time with the child in Sydney for the purpose of participating in cultural activities and events and spending time with visiting family members, provided that the father gives the mother reasonable notice of such requests, and that the events do not fall during school hours; and
(e) School holiday time between the child and the father shall not occur in accordance with orders 6(b) and 6(c), unless the father confirms in writing to the mother that he intends to exercise that time, and the dates on which he intends to exercise time, at least 28 days prior to the commencement of the relevant school holiday period.
7.
From 1 August 2019, during one of the seven (7) day periods referred to in order 6(b) herein, each year:
(a) By consent, the father may elect to spend the time with the child in the Northern Territory;
(b) By consent, the father shall give the mother at least four (4) months’ notice in writing of such election, including the precise dates during the seven (7) day period on which he proposes to spend time with the child in the Northern Territory and the town or city in which he proposes to spend such time;
(c) By consent, provided the mother receives notice of the father’s election in accordance with order 7(b) herein, the mother shall travel to the Northern Territory with the child for the purposes of the child spending time with the father in the Northern Territory on the dates nominated by the father;
(d) By consent, the father shall book and pay for the child’s and the mother's return airfares between Sydney and the Northern Territory, and shall provide the mother with the booking confirmation at least two (2) months prior to departure from Sydney and within seven (7) days of the mother receiving the booking confirmation the mother shall reimburse the father for the cost of her airfare;
(e) The father shall book and pay for accommodation of a reasonable standard in the Northern Territory for the child and the mother, and shall provide the mother with a copy of the booking confirmation at least two (2) months prior to the mother and the child’s arrival in the Northern Territory. For the purposes of this order, "reasonable standard" is a standard not less than the standard of a three-star hotel;
(f) By consent, if both parents agree that the child is ready to spend overnight time with the father for the duration of the period referred to in order 7(b) herein, then the child will travel to the Northern Territory with the father and orders 7(c), 7(d) as to booking the mother's airfare, and 7(e) herein will cease to apply; and
(g) By consent, the time that the child spends with the father in the Northern Territory in accordance with this order may extend beyond seven (7) days if such extension is agreed between the parents.
8.
By consent, in the event the father resides outside of the Sydney metropolitan area, the child shall spend time with the father as agreed in writing between the parents.
9.
By consent, during any period of time that the child spends with the father in accordance with these orders, the father is at liberty to arrange for the child to spend time and communicate with members of her extended L family; to participate in cultural events and activities, and to explore and develop her cultural understanding and identity in any manner the father considers appropriate.
10.
For the purpose of changeover that does not otherwise coincide with the conclusion or commencement of the child’s school day, the father shall collect the child from the mother’s place of residence at the commencement of the child’s time with the father and shall return the child to the mother’s place of residence at the conclusion of time.
11.
THE COURT NOTES the following matters in relation to the child’s participation in a smoking ceremony with her L family:
(a) Both parties agree that the smoking ceremony is an important part of the child’s cultural development;
(b) Both parents agree that the smoking ceremony should take place at a time agreed between the parties, but not before 1 August 2019, and not during the months of December, January or February;
(c) The mother agrees that, subject to herself and the maternal grandmother being invited to attend the smoking ceremony, she will facilitate the child’s attendance at the smoking ceremony by taking the child to Darwin, Alice Springs or another location in the Northern Territory nominated by the father in consultation with his L family;
(d) Both parents agree that that it is the father’s responsibility to liaise with his L family in relation to the child’s smoking ceremony, to make the necessary arrangements for the ceremony to take place, and to provide reasonable notice to the mother of the proposed arrangements (reasonable notice being at least three (3) months prior to the event);
(e) Subject to the child’s L family’s approval, the mother and the maternal grandmother are permitted to attend; and
(f) The mother agrees to arrange and pay for transportation for herself, the child and the maternal grandmother to and from the location of the smoking ceremony, subject to the father paying for return airfares for the child and the mother between Sydney and Darwin or Alice Springs, and the father paying for accommodation of a reasonable standard for the child and the mother in Darwin or Alice Springs and (if necessary) at another city or town near the location of the smoking ceremony (if the ceremony is not to take place in Darwin or Alice Springs).
12.
By consent, in the event that the child travels to the Northern Territory for the purposes of the smoking ceremony, that period of time spent with the father and his extended family will replace the one optional period of time in in the Northern Territory provided for in order 7 herein in that particular year.
13.
The mother be permitted to sign passport applications and renewal of passport applications for the child, without the consent of the father, at any time and that passport shall be retained by the mother, once issued.
14.
Pursuant to s 65Y(2)(b) of the Act and subject to order 15 herein, the mother is permitted to remove the child from Australia for the purpose of taking her on holidays.
15.
If the mother proposes to travel overseas for a holiday with the child, the mother shall provide to the father, not less than 14 days prior to the proposed date of departure from Australia, the following:
(a) A copy of the child’s return airline or shipping tickets;
(b) An itinerary for the period of time the child will be out of Australia; and
(c) Telephone or Skype numbers on which the mother and the child can be contacted while out of Australia.
16.
By consent, each party keep the other informed at all times of their current residential address, contact telephone number and email address and any changes to these details.
17.
By consent, each party notify the other as soon as practicable in the event that the child suffers a serious illness or injury, or is hospitalised, whilst in that party’s care.
18.
By consent, each party be, and hereby is, restrained from:
(a) Denigrating the other party or any member of the other party’s family to or in the presence or hearing of the child, or allowing any third party to do so; and
(b) Discussing these proceedings with the child or with anyone else in her presence or hearing.
19.
By consent, each parent is at liberty to liaise directly with the child’s school from time to time, to discuss the child’s educational progress and to receive information regarding the child’s education, including copies of her school reports, general school newsletters and school photograph order forms.
20.
By consent, each party is at liberty to attend events and functions at the child’s school, being events and functions to which parents are generally invited.
Property orders
21.
Within 30 days, the parties do all acts and things and execute all documents as may be required to list for sale and sell the property located as Town B Road, Town B, Northern Territory being the land described in Certificate of Title Volume … Folio … (“the first Town B property”) on the following basis:
(a) The first Town B property shall be listed with such real estate agent as may be agreed upon by the parties (“real estate agent”);
(b) For the purposes of sub-paragraph (a), if the parties have not agreed on the real estate agent within seven (7) days of the date of orders, the Applicant husband (“the husband”) shall, within a further seven (7) days, provide to the Respondent wife (“the wife”)
(c) the names of three (3) real estate agents with whom the husband has no personal connection and who have experience in marketing and selling properties within the general vicinity of the first Town B property, and the wife shall within a further seven (7) days nominate one of those agents whereupon the parties shall appoint the nominated agent as the real estate agent. If the husband fails to comply with his obligations under this order, the wife may select a real estate agent whereupon the parties shall appoint the wife’s selected agent as the real estate agent;
(d) The parties shall do all acts and things and sign all documents as may be required to procure a sale of the first Town B property by either private treaty or public auction as agreed by the parties or failing agreement as recommended by the real estate agent;
(e) In the event that the parties are unable to agree on any issue in relation to the marketing and advertising of the first Town B property, the parties shall accept the recommendations of the real estate agent in that regard;
(f) For the purposes of selling the first Town B property by private treaty, the listing price of the first Town B property shall be that amount agreed upon by the parties. If there is no agreement, in that regard, within 14 days of the date of determination of the real estate agent, the parties shall list the first Town B property for sale at a price as may be recommended by the real estate agent;
(g) If an offer is made to purchase the first Town B property by private treaty and the parties do not agree on whether or not to accept that offer, the parties shall engage a registered real estate valuer to determine the fair market value of the first Town B property. In default of agreement by the parties as to which valuer shall be appointed, within two (2) days of the offer being made, the parties shall engage such valuer as is recommended by the real estate agent on the request of either party (“the valuer”). If the offer made to purchase the first Town B property is not less than the fair market value of the first Town B property, as determined by the valuer, the parties shall accept the offer; and
(h) The reserve price of the first Town B property for any auction sale shall be that amount agreed upon by the parties, and in the absence of agreement by the date which is seven (7) days before the auction date, shall be as recommended by the real estate agent.
22.
The parties do all acts and things and sign all documents as may be required to cause the proceeds of sale of the first Town B property to be applied in the following manner and priority:
(a) Firstly, to pay all reasonable costs, commissions and expenses of the sale;
(b) Secondly, to discharge the mortgage to the Commonwealth Bank of Australia secured over the first Town B property;
(c) Thirdly, to pay $3,000.00 to Mr JJ and Ms KK Baum in repayment of the loan made to the parties by Mr JJ and Ms KK Baum;
(d) Fourthly to pay to the wife the sum of $30,941.68 in adjustment of the parties’ other net assets;
(e) Fifthly, to pay 72.5 per cent of the then remaining balance to the wife;
(f) Sixthly, to pay any outstanding council rates and sewerage service charges, water consumption charges and all other charges, costs and expenses which are payable to the Public Utility or any other authority for water or power services with respect to the first Town B property;
(g) Seventhly, to pay to the wife the sum of $33,705.66 payable by the husband to the wife pursuant to the costs orders made by the Court on 31 January 2017, 3 May 2017 and 22 February 2019, plus interest in respect to those amounts, calculated at the rate prescribed under rule 17.03 of the Family Law Rules 2004 (Cth);
(h) Eighthly, to pay $10,817 to the wife on account of arrears of child support payable by the husband; and
(i) Lastly, to pay the then remaining balance to the husband.
23.
Pending completion of the sale of the first Town B property:
(a) The husband shall pay all instalments pursuant to the mortgage and all insurances, rates, taxes and outgoings of the first Town B property as they fall due;
(b) The husband shall keep the first Town B property in a clean, tidy and well maintained state of repair and cooperate with the real estate agent on the sale, including making the first Town B property available for inspection by potential purchasers at all reasonable times;
(c) The parties hold their respective interests in the first Town B property upon trust pursuant to these orders; and
(d) Neither party shall encumber the first Town B property, nor do any act or thing to cause the balance of the loan currently secured by the mortgage over the first Town B property to be increased, without the consent in writing of the other party.
24.
Within 30 days, the husband shall cause the first Town B property to be presented in a clean, tidy and well maintained state of repair and free of rubbish, debris and other items not included in the sale, save for normal household items, and thereafter keep it in a clean, tidy and well maintained state of repair.
25.
The wife sign such documents as may be required to transfer to the husband, at the expenses of the husband, her title and interest in the motor vehicle.
26.
In the event that either party refuses or neglects to sign any document required to be signed to comply with these orders, the Registrar of the Family Court of Australia is hereby appointed to execute all Deeds and documents in the name of such party and do all acts and things necessary to give validity and operation to this order pursuant to s 106A Family Law Act 1975 (Cth).
27.
That the husband indemnify and keep indemnified the wife from and against all claims, actions, law suits and demands made by the Public Utility or any other relevant authority in relation to water and/or power services provided to the first Town B Property, including out of the proceedings instituted by Public Utility in the Local Court at Darwin in Claim Number … and for any money paid or payable by the wife on account thereof.
28.
The matter be otherwise removed from the active pending cases list.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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