Neville and Neville - [2013] FamCA 925

FAMILY COURT OF AUSTRALIA

NEVILLE & NEVILLE

[2013] FamCA 925

FAMILY LAW – CHILDREN – final orders – with whom a child should live – with whom a child should spend time – where the mother seeks to relocate herself and the children to Country A – best interests – no orders made concerning the relocation of the mother with the children to Country A – orders made for the children to live with the parties on a week about basis.
FAMILY LAW – PROPERTY SETTLEMENT – final orders – adjustment of property interests – consideration of assets and liabilities of the parties – consideration of s 79(4) of the Family Law Act 1975 (Cth) – consideration of s 75(2) of the Family Law Act 1975 (Cth) – orders made.

Family Law Act 1975 (Cth) s 60CA; 60CC; 61DA; 65DAA; 75; 79; 80; 81

Morgan & Miles (2007) FLC 93-343
Malcolm & Monroe (2011) FLC 93-460
Starr & Duggan [2009] FamCAFC 115
MRR v GR (2010) 240 CLR 461
Bevan & Bevan [2013] FamCAFC 116
Heaton & Heaton [2012] FamCAFC 139
Sayer & Radcliffe & Anor [2012] FamCAFC 209
Stanford & Stanford [2012] HCA 52

APPLICANT:

Ms Neville

RESPONDENT:

Mr Neville

FILE NUMBER:

DNC

254

2011

DATE DELIVERED:

29 November 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

12 April 2013;
15 - 19 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Farmer

SOLICITOR FOR THE APPLICANT:

Withnalls Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Truman
(with Mr Barry)

SOLICITOR FOR THE RESPONDENT:

Cecil Black Family Lawyers

Orders

The parents have equal shared parental responsibility for K born … 2002 and B born … 2004 (“the children”).
During school terms, except as otherwise provided in these orders, the children shall live with the parties on a week about basis with the exchange of the children occurring on the Monday at the conclusion of school, except as otherwise provided for in these orders.
During the one week term 1 school holidays:
(a)the children in even numbered years live with the father for the one week holiday;
(b)the children in odd numbered years live with the mother for the one week holiday;
(c)for the purposes of these orders or unless agreed to in writing between the parties the week commences when school finishes on the last day of term 1 and concludes at drop off on the day that term 2 commences.
During the two week term 3 school holidays:
(a)the children shall live with the father for the first week and the mother for the second week;
(b)for the purposes of these orders or unless agreed to in writing between the parties the first week commences when school finishes on the last day of term 3, the second week commences at 5.00 pm on the following Sunday and the second week concludes at drop off on the day that term 4 commences.
During the mid-year school holidays the children shall live with each of the parties…

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.

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Details

Case: [2013] FamCA 925
Decision Date: 29 November 2013

CaseChat Overview and Summary

This matter concerned orders made by Dawe J regarding the parental responsibility and living arrangements for two children, K and B. The dispute involved the parents' differing views on how the children's time should be divided between them, particularly during school holidays and on special occasions. The orders also addressed the division of property and financial matters between the parents.

The court was required to determine the specific arrangements for the children's residence with each parent throughout the year, including during school terms, school holidays, and on significant dates such as birthdays and public holidays. Additionally, the court had to make orders concerning the division of various assets, including a former matrimonial home, vehicles, personal property, and financial matters, with the intention of achieving a final settlement of the parties' financial relationship.

Dawe J applied principles of the *Family Law Act 1975* (Cth) to establish orders for equal shared parental responsibility and a detailed schedule for the children's time with each parent. This schedule encompassed week-about arrangements during school terms, specific allocations for each school holiday period, and provisions for special days. The court also made orders for the division of property, including the transfer of the former matrimonial home and the distribution of personal belongings, aiming for a final resolution of financial claims between the parties. The orders included mechanisms for enforcement and provisions for the parties to obtain necessary travel documents for the children.

Orders

Orders of the court

The parents have equal shared parental responsibility for K born … 2002 and B born … 2004 (“the children”).

During school terms, except as otherwise provided in these orders, the children shall live with the parties on a week about basis with the exchange of the children occurring on the Monday at the conclusion of school, except as otherwise provided for in these orders.

During the one week term 1 school holidays:

(a) the children in even numbered years live with the father for the one week holiday;

(b) the children in odd numbered years live with the mother for the one week holiday;

(c) for the purposes of these orders or unless agreed to in writing between the parties the week commences when school finishes on the last day of term 1 and concludes at drop off on the day that term 2 commences.

During the two week term 3 school holidays:

(a) the children shall live with the father for the first week and the mother for the second week;

(b) for the purposes of these orders or unless agreed to in writing between the parties the first week commences when school finishes on the last day of term 3, the second week commences at 5.00 pm on the following Sunday and the second week concludes at drop off on the day that term 4 commences.

During the mid-year school holidays the children shall live with each of the parties as follows:

(a) in odd numbered years with the father for the first half of the school holidays and with the mother for the second half of the school holidays;

(b) in even numbered years with the mother for the entirety of the school holidays;

(c) unless otherwise agreed the first half of the mid-year school holiday period commences when school finishes on the last day of term 2 and the second half commences at 5.00 pm on a Sunday concluding at 8.00 am on the first day of term 3.

During the Christmas school holidays the children shall live with each of the parties as follows:

(a) in odd numbered years with the mother for the entirety of the Christmas school holidays;

(b) in even numbered years with the father for the first half and with the mother for the second half of the Christmas school holidays;

(c) unless otherwise agreed the first half of the Christmas school holiday period commences when school finishes on the last day of term 4 and the second half commences at 5.00 pm on a Sunday concluding at 8.00 am on the first day of term 1 in the following year;

(d) in the event both parties are present in Darwin on Christmas the parent who is not otherwise scheduled to spend time with the children shall spend time from 2.00 pm Christmas Day to 2.00 pm Boxing Day.

In the event that the children are to travel to Country A, the father shall purchase per year:

(a) for 4 years from the date of these orders a return plane ticket from Darwin to City C for both of the children; and

(b) thereafter until the child B turns 16 years of age a return plane ticket from Darwin to City C for one of the children.

The father and the mother may spend additional time with the children as agreed in writing between the parties.

On non-school days and on “special days” the parties shall exchange the children at their respective place of residence or a mutually agreed location to be confirmed in writing.

10.

On occasions of special significance (“special days”) the children shall spend time with the parties as may be agreed in writing between the parties and in default of agreement as follows:

(a) on the children’s and the relevant parent’s birthday, each parent shall spend time with the children as follows:

(i) on the parent’s birthday from 2.30 pm or when school finishes (if applicable) the day before the parent’s birthday to 8.00 am the day after the parent’s birthday;

(ii) on the children’s birthdays in even years the mother shall spend time with the children from 2.30 pm the day before the children’s birthdays to 1.00 pm on the child’s birthday, and on odd years from 1.00 pm on the child’s birthday to 8.00 am the next day;

(iii) on the children’s birthdays in even years the father shall spend time with the children from 2.30 pm the day before the children’s birthdays to 1.00 pm on the child’s birthday and in even years from 1.00 pm on the child’s birthday to 8.00 am the next day;

(b) the children will spend Father’s Day with the father from 8.00 am until before school the following day;

11.

During the Easter period, the children shall spend time with the parents as follows:

(a) in even years, the children shall spend time the Easter holiday period with the father;

(b) in odd years, the children shall spend the Easter holiday period with the mother;

(c) for the purposes of these orders or unless agreed in writing between the parties the Easter holiday period commences at 8.00 am on Good Friday and ceases at 5.00 pm on Easter Monday.

12.

Either party may take the children interstate or overseas whilst the children are in the party’s respective care as provided for in these orders on the condition that at least fourteen [14] days prior to departure or unless otherwise agreed in writing the travelling parent shall provide to the other parent full particulars of the travel arrangements, destination and accommodation proposed for the children during the period of travel UPON NOTING should one party be interstate or overseas when a “special day” falls, the other party’s time with the children is suspended for the duration of the “special day”.

13.

The children shall be at liberty to speak with either parent on the telephone at all reasonable times and each parent shall once per day facilitate the children to speak to the other parent.

14.

The parties to keep each other promptly informed as to any emergency, illness or medical concerns in relation to the children in a timely manner and if there are any matters of an urgent nature, the parent who has the care of the children will notify the other parent immediately.

15.

The parents will both be entitled to attend any of the children’s school or extra curricula activities to which parents are ordinarily invited to attend.

16.

Each parent shall be entitled to obtain copies of the children’s health care records and to discuss matters with the children’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.

17.

Neither parent will denigrate the other to or in the hearing of the children and shall refrain from discussing all matters pertaining to disputes of any nature with or in the hearing of the children.

18.

Each parent shall keep the other informed of their residential address, postal address (if different), landline telephone number, mobile telephone number and e-mail address at all times and shall notify the other of any changes to their contact details within three [3] days of any change.

19.

Each parent carry out all necessary actions and sing all necessary documents to obtain/renew both Country A and Australian passports for the children, and for the purposes of these orders or unless otherwise agreed to in writing:

(a) the Australian passports will remain in the father’s possession;

(b) Country A passports to be held by the mother;

(c) should either party fail to sign all necessary documentation, a Registrar of the Court upon proof by affidavit of such failure is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute any such documents on behalf of the mother and father to give force and effect to this order.

20.

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

In full and final settlement of any claim which either party may have for settlement of property, alteration of interest in property:

21.

The father shall retain to the exclusion of the mother, the camping trailer and other personal property items currently in his possession.

22.

The mother shall retain to the exclusion of the father her motor vehicle and save as hereafter set out the other personal property items currently in her possession.

23.

Within fourteen [14] days the mother shall deliver up to the father who shall thereafter retain the same to the exclusion of the mother the following items:

(a) copies of all photographs of the children;

(b) copies of all photographs upon / or the original of one black tri-fold photo board of the children;

(c) all of the father’s personal possessions and other items which are currently in the power, possession or control of the mother including but not limited to:

(i) work tools held in storeroom;

(ii) any personal clothes and personal effects belonging to the father;

(iii) blue storage container;

(iv) leather lounge and side tables;

(v) nice mirror;

(vi) pool chairs;

(vii) half the outdoor pots;

(viii) wheel barrow;

(ix) garden tools;

(x) compressor;

(xi) bread maker;

(xii) didgeridoo;

(xiii) Aboriginal art work;

(xiv) any personal papers held in filing cabinet;

(xv) large buffet with glass doors;

(xvi) three piece coffee/end table set;

(xvii) half of the shelving units.

24.

Should the father be able to obtain the necessary finance and to complete the transactions within ninety [90] days of the date of these orders:

(a) the mother do all acts and things and sign all documents to the effect a transfer to the father of all her right title and interest in D Street, E Town in the Northern Territory (“the former matrimonial home”) with the father to do all acts and sign all documents to refinance and discharge mortgages … and … in favour of the ANZ Banking Group Limited;

(b) the mother do all acts and things and sign all documents necessary to facilitate the discharge of mortgages … and … in favour of the ANZ Banking Group Limited;

(c) the father pay to the mother the sum of TWO HUNDRED AND FOURTEEN THOCOUNTRY AND SEVEN HUNDRED AND SIXTY TWO DOLLARS [$214,762.00] by way of bank cheque;

25.

The father shall indemnify and keep indemnified the mother in relation to the outstanding loan in the sum of TWENTY-FIVE THOCOUNTRY AND DOLLARS [$25,000] to Mr F and Ms G Neville.

26.

Should the father be unable to comply with Order (25) above

(a) the property shall be sold at auction at a price and upon such terms as McGees recommend, with the proceeds of sale to be applied as follows:

(i) payment of all costs and expenses of sale including disbursements, payments or rates and any other charges due on the property (excepting electricity and phone charges), agents commission, valuers fees and advertising expenses;

(ii) the amounts required to discharge the mortage(s) registered on the said property title;

(iii) pay out in full the ANZ supplementary loan in the husband’s name.

27.

In payment of the sum of TWO HUNDRED AND FOURTEEN THOCOUNTRY AND SEVEN HUNDRED AND SIXTY TWO DOLLARS [$214,762.00] to the mother and the balance if any to the father PROVIDED THAT if the proceeds of sale after compliance with paragraph (27) hereof amount to less than the sum of TWO HUNDRED AND FOURTEEN THOCOUNTRY AND SEVEN HUNDRED AND SIXTY TWO DOLLARS [$214,762.00] the balance shall be the amount to be paid to the wife.

28.

The children’s funds being held in trust for the children continue to be held in trust for the children together with the children’s quads and 70 cc motorbike and bicycles.

29.

Unless otherwise provided for these Orders and save for the purposes of enforcing any monies due under these orders or any subsequent Family Law Act 1975 (Cth) orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses in action) which is in their possession at the time of these Orders;

(b) each party be solely entitled to the exclusion of the other, to any monies, shares, debentures, investments and superannuation entitlements which stand in their sole name or to their credit;

(c) each party forego any claim they may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to or earned by the other;

(d) insurance policies remain the sole property of the owner named thereon;

(e) each party is solely liable for and indemnifies the other against the any liability encumbering any item of property to which that party is entitled pursuant to these orders and any taxation liabilities associated with the property subject to these orders;

(f) each party is solely liable for and indemnifies the other against any debt of any kind whatsoever that is in their sole name;

(g) any joint tenancy of the parties is hereby severed immediately;

(h) the parties remain individually liable for any taxation liability that may accrue or has accrued up to and including the date of these Orders and shall continue to remain individually liable for any such liability accrued thereafter and shall indemnify the other regarding same.

30.

The parties acknowledge that the terms of these Orders are intended to end their financial relationship as far as possible in relation to property settlement pursuant to the provisions of section 81 of the Family Law Act 1975 (Cth).

31.

In the event of a failure by either party to sign all documents and carry out all acts necessary to give full force and effect to these orders within fourteen [14] days of a written request to do so, a Registrar of the Family Court of Australia is hereby appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute any necessary documents and carry out any necessary acts to give force and effect to these orders at the expense of the defaulting party.

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Decision

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