FAMILY COURT OF AUSTRALIA
| NIEM & TONG | [2016] FamCA 1089 |
| FAMILY LAW – PROPERTY – Interim proceedings – Whether it is appropriate to make interim orders – where the total asset property is not known – Where there are creditor District Court Proceedings pending – Where a trustee is to be appointed by agreement for sale of investment properties – Where both husband and wife seek that the property be sold – Where the wife is authorised to use funds to settle District Court proceedings. FAMILY LAW – CHILDREN – Interim proceedings – Where interim order for equal shared parental responsibility – Where discussion of applicable considerations as to the children’s best interests – Where there is a lack of parental insight – Where the parents are restrained from physically disciplining the children – Where the older children to live with the father – Where the younger child to live with the mother – Where the younger children to spend time together – Best interests of the children. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 79, 114 |
| Banks [2015] FamCAFC 36 Deiter& Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93 Goode and Goode: [2006] FamCA 1346 Harris & Harris (1993) FLC 92 Keats [2016] FamCAFC 156 Marvel & Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 MRR v GRR [2010] HCA 4 Strahan & Strahan [2009] FamCAFC 166 |
| APPLICANT: | Ms Niem |
| RESPONDENT: | Mr Tong |
| FILE NUMBER: | PAC | 3572 | of | 2014 |
| DATE DELIVERED: | 19 December 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 14 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lethbridge |
| SOLICITOR FOR THE APPLICANT: | Maclarens Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Steven Stefanou & Co |
Orders
Pending further order:
Parenting
That the mother and father have equal shared parental responsibility for the children B born … 2001, C born … 2005 and D born … 2010.
That the child B live with the father and spend time with the mother in accordance with his wishes.
That the child C live with the father.
That the child C spend time with the mother as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the first weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
That the child D live with the mother.
That the child D spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the second weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following…
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- AGLC
- Niem & Tong [2016] FamCA 1089
- Case
- [2016] FamCA 1089
- Decision Date
CaseChat Overview and Summary
The court was required to determine appropriate interim parenting orders, considering the best interests of the children, and to make interim property orders. Key issues included the division of assets, the management of pending litigation, and the immediate financial needs of the parties, particularly in relation to settling the District Court proceedings. The court also had to address the parents' capacity to co-parent effectively, noting a lack of parental insight and the need to restrain physical discipline.
In relation to parenting, Foster J made orders for equal shared parental responsibility. The older child was to live with the father, while the younger child was to live with the mother. Specific arrangements were made for the children to spend time with the non-resident parent, with provisions for agreed arrangements and default weekend time. The court also made orders restraining both parents from physically disciplining the children and requiring them to keep each other informed of significant matters concerning the children's welfare and health. On the property front, the court ordered the appointment of a trustee to sell investment properties, with proceeds to be disbursed after sale expenses and encumbrances. The wife was authorised to use funds to settle the District Court proceedings, and specific directions were given for the disbursement of trust monies held by solicitors. The wife was granted sole use and occupation of the former matrimonial home, with the husband restrained from dealing with that property.
Orders
Orders of the court
Pending further order:
Parenting
1.
That the mother and father have equal shared parental responsibility for the children B born … 2001, C born … 2005 and D born … 2010.
2.
That the child B live with the father and spend time with the mother in accordance with his wishes.
3.
That the child C live with the father.
4.
That the child C spend time with the mother as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the first weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
5.
That the child D live with the mother.
6.
That the child D spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the second weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
7.
That the mother and father be and are hereby restrained from physically disciplining the children.
8.
That the mother and father are at liberty to attend on occasions significant to the welfare of the children and each of them in relation to the children’s schooling, religious education, extracurricular activities, and such other occasions significant to the welfare of the children where the attendance of either or both parents is to be reasonably expected.
9.
That the mother and father keep each other informed at all times of their respective mobile telephone numbers and landline telephone numbers, if applicable, and notify the other in the event of any change within 24 hours of any such change occurring.
10.
That the mother and father keep each other informed at all times of any general practitioner or other health practitioner on which any of the children attend and do all necessary things so as to authorise the other to be provided with any reasonably requested information in relation to the attendance on such practitioners.
11.
That for the purposes of changeovers where not at school the father as necessary shall deliver the child C to the mother’s residence or any other venue agreed to and reasonably nominated by the mother for the commencement of the mother’s time with the child and the mother shall deliver the child D to the father’s residence or any other venue agreed to and reasonably nominated by the father for the commencement of the father’s time with the child and that at the conclusion of each parent’s time with C or with D, as applicable, the parent with whom the child has been spending time shall return the child to the other parent’s residence or any other venue agreed to and reasonably nominated by that other parent.
Property and Injunctions
12.
That within 14 days from this date the husband as Appointor of the E Trust shall appoint Mr F, Solicitor as Trustee of the Trust for the purposes of selling by public auction the real estate properties 1 and 2 G Street, Suburb H for the best price reasonably obtainable and upon sale disburse the proceeds of sale in the following order and priority:
(a) in payment of auction and advertising expenses and agents commission on the sale;
(b) in payment of legal expenses of and incidental to the sale;
(c) in payment of the Trustee’s reasonable fees and expenses of and incidental to the sale of the said properties;
(d) in discharge of the mortgage encumbrances secured thereon including any arrears payable at the time of sale;
(e) in payment of the then remaining balance of proceeds of sale to an interest-bearing controlled monies account in the names of the solicitor for the husband and the solicitor for the wife jointly with such account to be held on trust for E Pty Ltd as trustee of the E Trust pending further order.
13.
That forthwith upon final settlement of the sale of the real estate properties as provided for in the previous order, the husband shall do all things necessary as Appointor of the E Trust to reappoint E Pty Ltd as trustee of the E Trust.
14.
That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities so as to authorise and permit the wife to contact and negotiate with I Pty Ltd being the plaintiff in proceedings 2016/… in the District Court of New South Wales so as to procure, if possible, a compromise and final settlement of the claims made in those proceedings.
15.
That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities to authorise and direct Stephen Stefanou and Co, Solicitors to pay $50,000.00 of the trust monies presently held by him on behalf of the husband to the wife as she may direct the solicitor in writing and thereafter the husband be at liberty to direct the application of the balance then remaining.
16.
That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities to authorise and direct Mr J, Solicitor to account for the trust monies presently held by him on behalf of the husband in the following manner and priority:
(a) as to the sum of $50,000.00 provided for in orders made 13 October 2016 if not already paid, to be paid to the wife as she may direct the solicitor in writing;
(b) as to the balance of funds then remaining in trust (estimated to be about $142,000.00) to the wife’s solicitors to be held in trust by those solicitors for the parties jointly and only to be disbursed in payment of all or part of any settlement reached in relation to the I Pty Ltd proceedings.
17.
That the wife is hereby authorised and permitted to apply funds presently held in the parties’ ANZ Joint Account as necessary in payment of any settlement reached in relation to the I Pty Ltd proceedings after payment of funds as provided for in the previous order.
18.
That otherwise the husband and wife are restrained from dealing with in any way or permitting the withdrawal or diminution of the balance of funds thereafter remaining in their ANZ Joint Account pending further order.
19.
That the wife, having sole use and occupation of the former matrimonial home at K Street, Suburb L to the exclusion of the husband by reason of orders made 13 October 2016, shall pay as they fall due and payable outgoings in relation to that property including but not limited to Council rates, water rates and property and contents insurances.
20.
That the husband be and is hereby restrained from selling, mortgaging, leasing, encumbering or otherwise dealing with the property at K Street, Suburb L pending further order.
21.
That otherwise all interim applications before the Court are dismissed.
22.
That proceedings be adjourned for further judicial case management to 9.30 am on Friday, 10 February 2017 and it is noted that such listing is to facilitate the appearance of the Independent Children’s Lawyer appointed by order on 14 November 2016 and to give consideration to the appointment of an appropriate Chapter 15 expert as to parenting issues and an appropriate Chapter 15 expert for the purpose of corporate valuations.
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
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b). The Additional Considerations: Section 60CC(3) sets out the additional considerations:a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;b)the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);c)the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii)to communicate with the child;ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;f)the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right; i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; j)any family violence involving the child or a member of the child's family; k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter; l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; m)any other fact or circumstance that the court thinks is relevant.