FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naiman & Naiman [2024] FedCFamC1F 816
File number: SYC 6945 of 2018 Judgment of: HARTNETT J Date of judgment: 29 November 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother sought sole parental responsibility – Where the father sought equal shared parental responsibility – Where the father experiences mental health difficulties and substance abuse issues – Where the children spend time with the father supervised by the paternal grandmother – Where the mother seeks supervised time continue indefinitely – Where the mother has relocated – Where there is a dispute as to the children’s schooling – The mother have sole parental responsibility – The children live with the mother – No orders made for supervised time – Where the father continue to undertake alcohol testing and engage in therapeutic support as a requirement to spend time with the children.
FAMILY LAW – PROPERTY – Where the husband seeks to retain the former matrimonial home – Where the wife has relocated over 30 kilometres away – Where the parties owe outstanding funds to the maternal grandparents trust – Where the husband has failed to provide financial disclosure – Where the husband earns a significant income to that of the wife – Sale of the former matrimonial home – Parties to repay the trust – Superannuation split – The husband receive 41 per cent and the wife receive 59 per cent of the asset pool.
Legislation: Australian Passports Act 2005 (Cth) s 11
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Parts VII, VIII, ss 60CA, 60CC, 61C, 61DA, 65DAA, 75, 79, 81, 90SM, 90XT, 106A
Family Law Amendment Act 2023 (Cth)
Cases cited: Bevan & Bevan (2013) FLC 93-545
Blandford & Esmore [2022] FedCFamC1A 67
Blinko & Blinko [2015] FamCAFC 146
Goode & Goode (2006) FLC 93-286
Lovine & Connor (2012) FLC 93-515
M & M (1988) 166 CLR 69
Mallet v Mallet (1984) 156 CLR 605
Mulvany & Lane (2009) FLC 93-404
Petruski v Balewa (2013) 49 Fam LR 116
R & C [1993] FamCA 62
Roverati & Roverati (2021) FLC 94-027
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Division: Division 1 First Instance Number of paragraphs: 293 Date of last submissions: 3 June 2024 Date of hearing: 5-8 September 2023; 26-28 February 2024 & 15 April 2024 Place: Heard in Sydney & Melbourne (via videolink), delivered in Melbourne Counsel for the Applicant: Mr Dura SC Solicitor for the Applicant: Consort Family Law Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Barkus Doolan Winning Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 6945 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NAIMAN
Applicant
AND: MS NAIMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
29 NOVEMBER 2024 AMENDED 2 DECEMBER 2024
THE COURT ORDERS THAT:
Parenting
1.All previous parenting…
Continue reading Naiman & Naiman
Sign in free to access the full text
- AGLC
- Naiman & Naiman [2024] FedCFamC1F 816
- Case
- [2024] FedCFamC1F 816
- Decision Date
CaseChat Overview and Summary
The court had to determine the best parenting arrangements for the children, considering Mr Naiman’s mental health issues and substance abuse, and whether supervised visits should continue indefinitely. Furthermore, the court needed to address the property settlement, including the sale of the former matrimonial home, the division of superannuation, and the repayment of loans from the K Trust and the maternal grandparents.
The court concluded that Ms Naiman should have sole parental responsibility for the children, who would live with her. The children would have supervised visitation with Mr Naiman, contingent on his compliance with specific conditions, including abstaining from alcohol, attending psychological and psychiatric appointments, and undergoing regular alcohol testing. The court ordered the sale of the former matrimonial home, with the proceeds divided between the parties. The superannuation was also divided equally, and the parties were required to repay the outstanding funds to the maternal grandparents trust. The court recognised the significant contributions made by Ms Naiman to the care and support of the children, leading to her receiving a larger percentage of the property settlement.
In conclusion, the court granted sole parental responsibility to Ms Naiman and ordered the children to live with her. Mr Naiman’s visitation was made conditional on his compliance with strict monitoring and treatment protocols. The former matrimonial home was ordered to be sold, and the assets and superannuation were divided. The parties were also required to repay the maternal grandparents trust.
Orders
Orders of the court
SYC 6945 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR NAIMAN
Applicant
AND:
MS NAIMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
29 NOVEMBER 2024 AMENDED 2 DECEMBER 2024
THE COURT ORDERS THAT:
Parenting
1. All previous parenting orders be discharged.
2. The mother have sole parental responsibility for the children, X born 2012 and Y born 2013 (“the children”) to include the making of decisions in respect of education and health.
3. The mother, in the exercise of her sole parental responsibility, must:
(a) consult with the father in writing about any long-term decision that is to be made for the children, at least 7 days prior to making such decision, unless in an emergency;
(b) consider any written response provided by the father providing his input into the long-term decision to be made for the children; and
(c) inform the father in writing of the long-term decision made within 48 hours of such decision being made.
4. The children shall live with the mother.
5. The children shall spend time with the father prior to the commencement of the December/January 2024/2025 school holidays on each Sunday from 9.00am to 6.00pm.
6. Commencing in Term 1 of 2025, the children shall spend time with the father during school terms in a fortnightly cycle as follows:
(a) week one: Friday after school (or 3.00pm if the children are not in school) to Monday before school (or 9.00am if the children are not in school); and
(b) week two: Wednesday after school (or 3.00pm if the children are not in school) to before school on Thursday (or 9.00am if the children are not in school) with this time spent being subject to the father living within a vicinity of 30 kilometres from the children’s schools.
7. The children shall spend time with the father during school holiday periods as follows:
(a) during Terms 1, 2 and 3 holidays in 2025 for one period of four consecutive nights as agreed between the parties in writing, and failing agreement, from the conclusion of school or 3.00pm on the last day of school term to 6.00pm on the fifth day;
(b) during the December/January school holidays in 2024/2025 for no more than three periods of four consecutive nights and provided there is a one week gap between each period, with dates and times as agreed between the parties in writing and failing agreement, commencing at 10.00am on the first Saturday of the school holidays and concluding at 6.00pm on the fifth day, and thereafter as determined by the father;
(c) during Terms 1, 2 and 3 holidays commencing in 2026 for one half of all such holidays being the first half in 2026 and the second half in 2027 and alternating thereafter;
(d) during the December/January school holidays commencing in 2025/2026 for two consecutive weeks of such holidays being in the first half in 2025/2026 and the second half in 2026/ 2027 and alternating thereafter save that the children are to be returned to the residence of the mother by at least 10.00am two days prior to the commencement of the school year.
8. For the purposes of defining the school holidays, until Y commences high school in 2026, the time shall be calculated in accordance with D School’s calendar and thereafter shall be calculated in accordance with the children’s high school calendar.
9. Notwithstanding these orders, and unless otherwise agreed between the parties in writing, the children spend time with their parents on the following special occasions:
(a) with the mother on Mother’s Day each year from 10.00am to 5.00pm;
(b) with the father on Father’s Day each year from 10.00am to 5.00pm;
(c) with the father on Easter Sunday in 2025 from 10.00am to 5.00pm;
(d) with the mother from 9.00am on Good Friday until 4.00pm on Easter Monday commencing in 2026 and each alternate year thereafter;
(e) with the father from 3.00pm on Holy Thursday until 12.00pm on Easter Sunday commencing in 2027 and each alternate year thereafter;
(f) with the mother in 2024 from 20 December until 4 January;
(g) with the mother in 2025 from 20 December until 4 January and each alternate year thereafter;
(h) with the father in 2026 from 20 December until 4 January and each alternate year thereafter.
10. On the children’s birthdays and on the father’s birthday, the children spend time with the father if a school day from after school or 3.00pm until 8.30pm, and if the children are not in school, then from 10.00am to 5.00pm on the father’s birthday and 10.00am to 2.00pm on each of the children’s birthdays.
11. For the purposes of changeover, unless otherwise agreed between the parties in writing, the father or his nominated agent shall collect the children from their school on school days or the front entrance to the mother’s home on weekends or holidays at the commencement of time, and deliver the children to school or the front entrance to the mother’s home at the conclusion of time.
AND THE COURT ORDERS, BY CONSENT, THAT:
12. The time the children spend with the father pursuant to these Orders is conditional upon the following occurring and it is a condition of the father spending time with the children that he comply with this order at all times:
(a) the father is restrained from consuming alcohol to excess when the children are in his care, and for a period of 24 hours prior to the children coming into his care.
(b) the father shall continue to attend upon a treating psychologist and a treating psychiatrist at times, and with such frequency, as may be recommended and/or requested by his treating psychiatrist (including for review of all medications as may be taken, or recommended to be taken, by the father by his treating medical professionals).
(c) the father shall take all medications prescribed to him by his treating medical practitioners in accordance with their directions.
(d) for a period of 24 months following the date of the making of these orders, the father shall undertake blood testing for phosphatidylethanol (PEth testing) as arranged by Mr E monthly, and the father is required to return PEth test results for each test taking which evidence levels below 150 μg/L for each such test undertaken. The father shall do all acts and things and provide all necessary instructions and directions to cause Mr E to provide directly to the mother copies of all PEth test results issued within seven (7) days of the publication of same;
(e) subsequent to the father’s compliance with Order 12(d), and for a period of a further 24 months, the father shall undertake blood testing for phosphatidylethanol (PEth testing) as arranged by Mr E or another suitably qualified health practitioner on a quarter year basis, and the father is required to return PEth test results which evidence levels below 150 μg/L for each test taken. The father shall do all acts and things and provide all necessary instructions and directions to cause Mr E to provide directly to the mother copies of all PEth test results issued within seven (7) days of the publication of same; and
(f) for a period of six months following the date of these Orders, the father shall undertake alcohol breathalyser testing no more later than 90 minutes before the commencement of each time occasion with the children, and no more later than 30 minutes after the conclusion of time, on each occasion the children spend with him. Such testing shall be undertaken by using a breathalyser device that has the capacity of photo and/or video recording the time and date of each test that is undertaken by the father and transmitting such photo and/or video to the mother immediately after the father has undertaken the test.
13. In the event that the father fails to comply with any and/or all of the Orders referred to at 12(a)-(f) inclusive, or in the event that:
(a) the father fails a breathalyser test (which is defined to be reading which detects any alcohol); or
(b) the father returns a PEth test which a result over 150 μg/L, each of the following shall apply:
(i) all time the children spend with the father shall be suspended for a period of a minimum of 30 days from the date of non-compliance; and
(ii) the time the children spend with the father shall only recommence after such minimum 30 day period of suspension upon the father providing to the mother, personally or via Mr E or another suitably qualified health practitioner, a PEth test result which records a result less than 150 μg/L and the father recommencing his compliance with orders 12(a)-(f) inclusive; and
(iii) the time the children spend with the father shall only recommence after such minimum 30 days period of suspension following the father causing the mother to be furnished with a written report from his treating psychologist or psychiatrist, which such report shall include the professional opinion of the father's treating psychologist or psychiatrist as to the mental health status of the father at that time, and whether or not, in the opinion of the father’s treating professional psychologist or psychiatrist the father has the requisite capacity to care for the children and does not present an unacceptable risk to the children.
14. Forthwith upon the making of these orders, and for a period of two years following the date of these orders, the father shall irrevocably authorise and direct his treating psychiatrist to:
(a) forthwith notify the mother in the event that the father ceases ongoing treatment with him/ her against the recommendation of the father’s treating psychologist and/or psychiatrist and/or fails to attend consultations as requested and/or recommended; and
(b) forthwith notify the mother in the event that the father relapses into consuming alcohol to excess and/or consumes alcohol in breach of these orders.
15. The mother and father shall communicate about the children by email and text message and, only in the case of emergency, by telephone.
16. 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.
17. Both parents shall be at liberty to attend all functions and events to which parents are invited or are expected to attend relating to each child’s participation in his/her extracurricular activities.
18. Without the written consent of the other parent first obtained in writing, each parent is restrained from enrolling the children, or any of them, in any sporting, music, or other extracurricular activity that requires or, may in the future require, the attendance of a child at times and on days when that child is in the care of the other parent.
19. 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 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 (including, but not limited to, each child’s treatment, diagnosis, prognosis, medications and test results).
20. Each party shall notify the other in writing of all serious injury and/or hospitalisation and/or medical treatment obtained for and/or involving the children or either of them as soon as reasonably practicable.
21. 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 the father upon either party’s respective request and at the requesting party’s own cost.
22. Each parent must notify the other as soon as practicable and within 24 hours of all changes to his/her landline telephone number and/or mobile telephone number and/or email address and each parent shall provide to the other the particulars of each new landline telephone number, mobile telephone number and email address.
23. Each parent must notify the other as soon as practicable and no later than six weeks prior to any changes to his/her residential address and each parent shall provide to the other the particulars of each new residential address.
24. The mother is at liberty to arrange and permit the children upon reaching the age of twelve, and each of them, to travel as unaccompanied minors on airlines which permit and allow unaccompanied minor travel.
25. Without admissions, neither party shall physically discipline (including smack) the children or either of them.
26. Each party is restrained from:
(a) denigrating and/or speaking negatively about the other party and/or members of the other party’s household in the presence or hearing of the children;
(b) engaging in discussions with the children, or either of them, about these proceedings save and except as is necessary to inform the children about the living arrangements resolved through the making of these orders, arrangements for communication in accordance with these orders, holiday and special event time arrangements, and matters related to the implementation of these orders;
(c) unreasonably questioning the children, or either of them, about the other parent or events that may have occurred while the children were in the care of the other parent; and
(d) showing or providing to the children, or either of them, originals or copies of any documents prepared for and/or used in connection with these proceedings.
27. The mother shall facilitate the attendance of the children upon a suitably qualified psychologist as agreed between the parties for the purposes of such psychologist providing to the children an age appropriate explanation as to the parenting arrangements prescribed by these orders and for the purposes of providing any therapeutic assistance to the children as may be deemed appropriate and/or necessary with such therapy to involve each of the parents at the request of the psychologist.
28. In the event the parties are in dispute about the implementation of these parenting orders or, notwithstanding proper consultation and discussion with each other, the parties remain in dispute about a substantive issue or issues involved in the parenting of the children, or any of them, then the parties shall first submit to mediation or Family Dispute Resolution to be conducted by a professional third party to be agreed between them (and failing agreement to be nominated by the father) before commencing further litigation in relation to parenting issues. The costs of the third party engaged by the parties shall be paid by the parties, as and when the same fall due and payable, in equal shares.
AND THE COURT ORDERS THAT:
29. For the purposes of s 11 of the Australian Passports Act 2005:
(a)
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
Ratio Decidendi
Legal Principle Established
The parties had the benefit of funds advanced by the K Trust, being interest-free loans, the most significant of which was the loan which enabled the parties to acquire the FMH in 2013, and which remains owing. Otherwise, the K Trust forgave the parties loans advanced by the Trust in the sum of NZD23,553.79 between 2008 and 2012.Contributions post-separation After separation, the wife had the benefit of occupation of the FMH to the exclusion of the husband until October 2023. The wife caused the mortgage secured over the property to be paid, primarily sourcing this from her parents. The total sum paid by the wife’s parents in reduction and paying out of the mortgage owing was $64,755.45. By July 2023, the FMH was unencumbered by a mortgage (though the discharge of mortgage documents had not been signed and lodged) and when the husband resumed occupation of it in October 2023, pursuant to Orders made 8 September 2023, he had mortgage and rent-free occupation. Since then, the husband has been otherwise solely liable for all expenses, including insurance, utility and outgoings in respect of the FMH. After separation, the K Trust paid $26,515 plus bond monies of $2,135 for the husband’s rental accommodation between November 2017 and September 2018. During this time, the husband continued to make some contribution to the parties’ mortgage repayments due in respect of the FMH. In August 2018, the husband ceased all payments. Otherwise, the maternal grandparents paid $18,033 toward the living expenses and other costs of the parties and children and further paid for the purchase of a motor vehicle for the wife in the sum of approximately $17,000. The maternal grandmother gifted to the wife the sum of $13,843.90 for the purposes of the FMH deck removal and replacement as described above. The wife received an ongoing significant benefit from the maternal grandparents in the rent free and all outgoings paid provision of the Suburb D property where she and the children presently live. This has indirectly benefitted the husband since October 2023, when he has been able to reside in the unencumbered FMH. The husband made a sole contribution in the continuation of his employment and acquisition of deferred shares post-separation which have subsequently vested and are included in the asset pool but in relation to which it is probable he shall have some tax liability. Each of the husband and wife contributed to the ongoing care of the children, the wife more so because of the husband’s alcohol misuse. The husband and wife each contributed to the support of the children. Conclusion as contributions The contributions as made by the K Trust and the maternal grandparents are contributions made on behalf of the wife. I conclude that the wife’s contributions based entitlement is 54 per cent and the husband’s is 46 per cent.Section 75(2) of the Act Matters Each of the parties are employed, the wife at trial on a casual basis but with a capacity to be employed full-time and earn a reasonable income. It was undisputed that the husband has a greater income and earning capacity than that of the wife. Included in the husband’s income is periodic salary payments, potential yearly bonuses, and deferred share awards.