Lovine & Connor - [2011] FamCA 432

FAMILY COURT OF AUSTRALIA

LOVINE & CONNOR AND ANOR

[2011] FamCA 432

FAMILY LAW - CHILDREN - Best interests – application seeking equal time – order made for substantial and significant time - relevance of father’s availability.

FAMILY LAW - PROPERTY SETTLEMENT– competing applications for alteration of property interests – determination of pool of assets – treatment of party’s interest in testamentary trust – add-backs for legal fees – potential capital gains tax liability.

FAMILY LAW - PROPERTY SETTLEMENT - Contributions - relevance of initial contributions.

FAMILY LAW - PROPERTY SETTLEMENT - Future needs.

Family Law Act 1975 (Cth)

Ashton and Ashton, (1986) FLC ¶91-777
Bremner and Bremner, (1995) FLC ¶92-560
Chorn and Hopkins, (2004) FLC ¶93-204
Davidson and Davidson (1991) FLC ¶92-197
Lawler and Lawler, (1988) FLC ¶91-927
Money and Money, (1994) FLC ¶92-485
Pierce and Pierce, (1999) FLC ¶92-844
Rosati and Rosati, (1998) FLC ¶92-804
Stephens and Stephens and Ors (2007) FLC ¶93-336)

APPLICANT:

Mr Lovine

FIRST RESPONDENT:

Ms Connor

SECOND RESPONDENT:

X Investments Pty Ltd

FILE NUMBER:

MLC

9419

2009

DATE DELIVERED:

10 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:	Mushin J
HEARING DATE:	25 – 29 October 2010 inclusive, 1 November 2010 & 3 November 2010, 22 - 23 February 2011 inclusive

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ackman QC
Ms Johns

SOLICITOR FOR THE APPLICANT:	Taussig Cherrie & Fildes
COUNSEL FOR THE RESPONDENT:	Mr St John SC Mr Dickson

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers Lawyers

IT IS ORDERED THAT

The husband and the wife have equal shared parental responsibility for making all decisions with regard to the care, welfare and development of the children W born … January 2001 and V born … October 2003.
The said children live with the wife.
The children spend time and communicate with the husband as follows:
a)during school term –
i)from after school on Thursday to the commencement of school on Monday (or the commencement of school on Tuesday if Monday is a non-school day) on each alternate week commencing 14 days after the commencement of the last such period; and
ii)each alternate Thursday from the conclusion of school until the commencement of school on Friday commencing 14 days after the commencement of the last such period;
b) during school holidays –
i)for one half of school holidays and the long summer vacation period at times to be agreed (such agreement to be in writing and exchanged no later than 21 days prior to the conclusion of the preceding school term) and failing agreement the second half of the school holidays beginning in even-numbered years and the first half of the holidays beginning in odd-numbered years; and
ii)from 5:30pm Christmas eve to 5:30pm on Christmas Day commencing 2011 and each alternate year thereafter; and
iii)from 5:30pm Christmas Day to 5:30pm Boxing Day commencing December 2012 and each alternate year thereafter; and
b)such other times as may be agreed between the parties.
Notwithstanding any other provision…

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.

Continue reading Lovine & Connor

Details

AGLC: Lovine & Connor [2011] FamCA 432
Case: [2011] FamCA 432
Decision Date: 10 June 2011

CaseChat Overview and Summary

In *Lovine & Connor*, the Full Court of the Family Court of Australia considered competing applications for the alteration of property interests and an application concerning children's time. The dispute involved the division of the parties' assets and the appropriate arrangements for their child, with the father seeking orders for equal time and the mother seeking orders for substantial and significant time.

The court was required to determine several key legal issues. These included the appropriate method for identifying and valuing the parties' asset pool, specifically how to treat the husband's interest in a testamentary trust. The court also had to consider whether to make add-backs for legal fees incurred by one party and the relevance of potential capital gains tax liabilities. Furthermore, the court was tasked with assessing the parties' contributions, both initial and ongoing, and their respective future needs in determining the property settlement. In relation to the children's matters, the court had to consider the father's availability as a factor in determining the child's best interests.

The Full Court applied the principles of the *Family Law Act 1975* (Cth) to the property settlement, undertaking a four-step process. This involved identifying the net value of the parties' property, assessing their contributions and future needs, and then making such orders as are just and equitable. The court determined that the husband's interest in the testamentary trust was a financial resource rather than a vested asset, and its value was to be considered in light of the likelihood of distribution. The court also found that add-backs for legal fees were not warranted in the circumstances, and that potential capital gains tax liabilities should be discounted. In relation to the children's matters, the court emphasised that the child's best interests were paramount and that the father's availability was a relevant consideration in determining the time the child spent with each parent.

The Full Court made orders for a property settlement and specific parenting arrangements for the child.

Orders