Nash and Nash

Case [2009] FMCAfam 766


FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASH & NASH [2009] FMCAfam 766
FAMILY LAW – Parenting – time child is to spend with father – mother’s inability to foster a relationship between child and father – psychological abuse – child’s wishes – parents’ inability to communicate – interim or final orders – property – modest assets – wife seeking to keep the former matrimonial home – whether cohabitation on foot – consent for superannuation in property pool – just and equitable order – wife’s need for spousal maintenance – husband’s ability to pay spousal maintenance – duty to disclose financial documents – future earning capacity of the husband.
Family Law Act 1975, ss.60B, 61DA, 65DAA(1), 60CC, 79, 75(2), 4AA, 72, 74, 75(3), 81
Archbold, In the Marriage of (1984) 9 Fam LR 798
C v B [2005] FamCA 94
CDJ v VAJ (No. 1) (1998) 197 CLR 172; [1998] HCA 67
Chang v Su (2002) 29 Fam LR 406; [2002] FamCA 156
Clauson, In the Marriage of (1995) 18 Fam LR 693
C v C (2005) 33 Fam LR 414; [2005] FamCA 429
DJM v JLM (1998) 23 Fam LR 396; [1998] FamCA 97
Ferraro, In the Marriage of (1992) 16 Fam LR 1
Goode v Goode (2006) 36 Fam LR 422; [2006] FamCA 1346
Gould & Gould (2007) FLC 93-333; [2007] FamCA 609
Grabar, In the Marriage of (1976) 2 Fam LR 11,581
Hickey, In the Marriage of (2003) 30 Fam LR 355; [2003] FamCA 395
Kannis & Kannis (2002) 30 Fam LR 83; [2002] FamCA 1150
Larvin & Larvin (No.2) [2009] FamCA 475
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92
Mitchell, In the Marriage of (1995) 19 Fam LR 44
Murkin and Murkin (1980) FLC  90-806
Nutting, In the Marriage of (1978) FLC 90 - 410
Patterson, In the Marriage of (1979) FLC 90 – 705
Pavey, In the Marriage of (1976) 10 ALR 259
PS & MA [2005] FMCAfam 486
R (Children’s Wishes), In the Marriage of (2002) 29 Fam LR 230; [2002] FamCA 383
Scott, In the Marriage of (1994) 17 Fam LR 420
Scott v Stauder (unreported, judgment delivered 20 November 1996)
Tait & Densmore [2007] FamCA 1383
Todd, In the Marriage of (No 2) (1976) 9 ALR 401
Vasser v Taylor-Black (2007) 37 Fam LR 256; [2007] FamCA 547
W v W (1997) 21 Fam LR 343
Applicant: MR NASH
Respondent: MS NASH
File Number: SYC 5800 of 2008
Judgment of: Pascoe CFM
Hearing dates: 20, 21, 22 July 2009
Date of Last Submission: 22 July 2009
Delivered at: Sydney
Delivered on: 20 October 2009

REPRESENTATION

Counsel for the Father: Ms Gillies
Solicitors for the Father: Thurlow Fisher Lawyers
Counsel for the Mother: Mr Harrison
Solicitors for the Mother: Slattery Jurd & Company

ORDERS

  1. All previous parenting orders be discharged

  2. That the parties are to have equal…

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AGLC
Nash and Nash [2009] FMCAfam 766
Case
[2009] FMCAfam 766
Decision Date

CaseChat Overview and Summary

The case of Nash and Nash involves a dispute between the parents of a child born in 1999. The primary issues before the court were the allocation of parenting responsibilities, the division of property, and spousal maintenance. The parents had previously shared parental responsibility, but the court was required to determine new arrangements that would best serve the child's welfare.

The court examined the principles of shared parental responsibility and the best interests of the child, particularly focusing on the child's need for stability and continuity. It was noted that the child had previously lived primarily with the mother and had a strong relationship with both parents. The court determined that equal shared parental responsibility was in the child's best interest, while the child would live primarily with the mother, with the father having specified visitation rights. The visitation schedule was designed to gradually increase the father's time with the child, reflecting the father's previous limited involvement and the need for the child to adjust to the changes.

The court also addressed the division of property between the parties. It ordered the wife to pay a specified amount of money to the husband as part of the property settlement, and mandated the transfer of ownership of the matrimonial home to the wife, with the husband to discharge the mortgage. Additionally, the court ruled on the ownership of personal items and vehicles, ensuring that each party retained their respective possessions.

Lastly, the court considered spousal maintenance, ordering the husband to pay a weekly amount to the wife until a specified date. The court's orders provide detailed arrangements for the child's living situation, visitation rights, property division, and spousal maintenance, aiming to balance the needs and rights of both parents while prioritizing the child's welfare.

Orders

Orders of the court

1.

All previous parenting orders be discharged

2.

That the parties are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the child [X], born in 1999

3.

That the child live with the mother, Ms Nash.

4.

That the child spend time with the father, Mr Nash, on a gradual basis as follows:

From 20 October 2009

(a) From 10am to 8pm on every second Saturday starting 24 October 2009;

(b) From 10am to 6pm on every second Sunday starting 25 October 2009;

(c) During the December/January school holiday period the first 3 Saturday’s of that period from 10am to 8pm starting 26 December 2009 and the first three Sunday’s of that period from 10am to 8pm starting 27 December 2009.

(d) From 1:00pm to 6:00pm on Christmas Day.

From 20 January 2010

(e) From 9am to 8pm on every second Saturday starting 30 January 2010;

(f) From 9am to 6pm on every second Sunday starting 31 January 2010;

(g) During the April school holiday period the first Friday, Saturday and Sunday of that period from 10am to 8pm starting 9 April 2010.

From 20 April 2010

(h) From 9am to 8pm on every second Saturday starting 24 April 2010.

(i) From 9am to 6pm on every second Sunday starting 25 April 2010; except on Mother’s Day Sunday 9 May 2010.

(j) Every second Friday from the conclusion of school until 8pm starting 30 April 2010.

(k) During the July school holiday period the first Friday, Saturday and Sunday of that period from 10am to 8pm starting 9 July 2010.

(l) On the child’s birthday from 2pm to 8pm.

(m) During the September/October school holiday period the first Wednesday, Thursday Friday and Saturday of that period from 10am to 8pm starting 29 September 2010.

From 20 October 2010

(n) From 9am Saturday to 6pm Sunday on every second weekend starting 23 October 2010.

(o) Every second Friday from the conclusion of school until 8pm starting 29 October 2010.

(p) During the December/January school holiday period, from 9am Saturday to 6pm Sunday on the last three weekends of that period starting 8 January 2011.

From January 2011 Onwards

(q) From the conclusion of school Friday to the commencement of school Monday every second weekend starting 4 February 2011.

(r) From the conclusion of school Wednesday till the commencement of school Friday starting 9 February 2011.

5.

Except as provided in the orders above, for one half of each gazetted New South Wales school holidays as agreed between the parties but failing agreement being the second half in 2011 and each alternate year thereafter and being the first half in 2012 and each alternate year thereafter;

6.

From 9.00a.m Christmas Eve until noon on Christmas Day in 2010 and each alternate year thereafter and from 2.00p.m on Christmas Day until 5.00p.m on Boxing Day in 2011 and each alternate year thereafter;

7.

Except as provided above, on the child’s birthday as follows:

(a) If the birthday falls on a school day, from after school the evening prior to her birthday until the start of school the day of the birthday in years ending in an even number and from after school on her birthday until the start of school the next day in years ending in an odd number;

(b) If the birthday falls on a weekend or school holiday when the child is not spending time with the father for four hours from 9.00am to 1.00pm.

8.

If Father’s Day falls on a day when the child is not spending time with the father from 9.30am to 8pm each year.

9.

At such other or alternate times as agreed between the parties.

10.

Pursuant to section 13C of the Family Law Act 1975 the father must within 7 days contact Relationships Australia (1300 364 277) or UNIFAM (02 8830 0777) to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for a parenting orders program.

11.

Both parties must attend the appointment at any reasonable location nominated by Relationships Australia or UNIFAM and complete the assessment.

12.

Relationships Australia or UNIFAM must be provided with a copy of this judgment.

13.

If assessed as suitable and Relationships Australia or UNIFAM nominates counselling, mediation including child inclusive mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.

14.

Both parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.

15.

Both parties to share equally the costs of the program.

16.

The father shall provide [X] with a mobile telephone and sufficient credit to make and receive telephone calls.

17.

The father may communicate with [X] on her mobile telephone at all reasonable times, but not more than three (3) times a week.

18.

Both parties shall facilitate the child communicating with the other parent by telephone whilst she is in their respective care should she express a wish to do so.

19.

For the purpose of changeover, and where changeover will not take place at school, the mother shall deliver the child to the father at the McDonalds Family Restaurant at [omitted], at the commencement of each period and the father shall return the child to the mother at the McDonalds Family Restaurant at [omitted] at the end of each period.

20.

Both parties notify the other in writing of any change of address or telephone contact numbers including mobile telephone numbers no later than twenty one (21) days prior to any proposed change, including the full details of the new address or telephone number.

21.

Both parties be entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.

22.

Both parties are hereby restrained from:

(i) Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child’s hearing.

(ii) Discussing any proceedings between the parents in the presence or hearing of the child or permitting any other person to do so.

23.

That within 90 days of the date of these orders the wife pay to the husband by way of property settlement the sum of seventy six thousand seven hundred and forty-four ($76,744.00) dollars.

24.

That simultaneously with compliance with Order (23) herein the following occur in relation to the former matrimonial home situated at and known as Property E, NSW being the whole of the land contained in Certificate of Title Folio Identifier Lot [omitted][“the home”].

(a) The husband shall do all acts and execute all such documents as are necessary to transfer to the wife the whole of his right, title and interest in the home.

(b) The wife discharge the loan secured by way of mortgage on the home as at the date of payment in its entirety.

and thereafter the wife indemnify and keep indemnified the husband in relation to the mortgage and other outgoings on the home.

25.

That simultaneously with compliance with Order (23) the parties shall also discharge the personal loan that stands in their joint name with the Commonwealth Bank of Australia namely loan account number [1] in its entirety.

26.

That from the date of order, the Wife continue to meet the mortgage instalments on the home as and when they fall due.

27.

That from the date of order the wife meet all other outgoings in relation to the home including but not limited to the council rates, water rates and utilities.

28.

In the event the wife fails to comply with Order (23) herein or fails to discharge the home loan in accordance with Order (24) herein by the due date, the husband and the wife shall forthwith do all things necessary to effect a sale of the home to be sold by private treaty at a price agreed between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.

29.

Upon the completion of the sale the proceeds to be distributed in the following order and priority:

(a) In payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale;

(b) In adjustment of rates and other outgoings in accordance with usual conveyancing practice;

(c) In discharge of the loan secured by way of mortgage registered on the title of the home;

(d) In payment to the wife in the sum of $24,622.00

(e) In payment to the husband of 35% of the balance then outstanding.

(f) In payment to the wife of the balance.

30.

In the event the home has not been sold by or before a date three (3) months from the date Order (28) becomes operative then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally, necessary to procure a sale by public auction of the home upon the following terms:

(a) The auctioneer shall be a real estate agent;

(b) The reserve price shall, unless agreed between the parties, be as proposed by the auctioneer;

(c) Upon completion of the sale the proceeds shall be distributed in accordance with Order (29) herein.

31.

That pending the transfer of the husband’s interest in the home, or the date of sale of the home in accordance with these orders, the wife shall have the exclusive right to occupation of the home.

32.

Within 21 days of the date of these orders the wife shall make available to the husband or the husband’s nominee the following items;

(i) Family Crest

(ii) Chandelier

(iii) Framed picture of girl and dog

(iv) Antique Phone

(v) 2 Antique side tables

(vi) Antique cigarette stand

(vii) Grey Briefcase

(viii) Record Collection

(ix) Gym set and equipment

(x) Tools

(xi) Clothes

33.

The husband is declared the sole legal and beneficial owner of the 2002 Nissan Pulsar motor vehicle registration number [I].

34.

Within 21 days, the Husband must do all acts and execute all documents to transfer to the wife the registration and all the right, title and interest in the Nissan motor vehicle registered number [U].

35.

Within (2) months of the date of these orders, and in the event the wife is able to locate the photo albums, the wife shall deliver to the husband’s solicitors photographic copies of the family photo albums, pictures of the father’s family and the children.

36.

Except as otherwise provided for in these orders each party is declared to be the sole beneficial owner of any property standing in their possession as at the date of these orders. This includes, but is not limited to, any bank account, superannuation fund, shares, stocks, debentures, chattels or real property.

37.

Except as otherwise provided for in these orders each party is declared to be responsible for any debt standing in their sole name as at the date of the making of these orders.

38.

The husband pay spousal maintenance in the sum of $50.00 per week until 12 July 2017.

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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