Paintal and Paintal - [2018] FamCA 922

FAMILY COURT OF AUSTRALIA

PAINTAL & PAINTAL

[2018] FamCA 922

FAMILY LAW – CHILDREN – Parenting – Property – interim – dispute as to time child is spending with parties – application of Rice & Asplund – circumstances to justify a change in interim orders – dispute as to child’s school – application for international travel – application to allow sale of properties – application for specific disclosure - application that the wife vacate matrimonial home – application for attendance upon psychiatric services – priority of transferred matter based on original filing date in the Federal Circuit Court.

Family Law Act 1975 (Cth) s 114

Bissett & Bissett [2013] FamCA 431
Goode v Goode (2006) 206 FLR 212
Marsden & Winch [2009] FamCAFC 152
Rice v Asplund [1978] FamCA 84

SPS & PLS [2008] 39 Fam LR 295

APPLICANT:

Mr Paintal

RESPONDENT:

Ms Paintal

INDEPENDENT CHILDREN’S LAWYER:

Mr P Smith

FILE NUMBER:

CAC

273

2014

DATE DELIVERED:

15 November 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

8 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

COUNSEL FOR THE RESPONDENT:

Mr J Haddock

SOLICITOR FOR THE RESPONDENT:	Women’s Legal Centre
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid, ACT

Orders

Each party is restrained by injunction from removing, permitting or attempting to remove, or from causing or permitting the removal of the child X (born … 2012) from the Commonwealth of Australia.
The Applicant, subject to these orders, is at liberty to cause the sale of the following properties:
(a)B Street, Suburb C in the Australian Capital Territory;
(b)D Street, Suburb E in the Australian Capital Territory; and
(c) F Street, Suburb G in the Australian Capital Territory.
In order to effect the sale of the properties the Applicant must appoint a real estate agent and a solicitor.
In order to appoint a real estate agent and a solicitor the Applicant may nominate such to the Respondent for her approval, noting that the respondent nominated three of each who were not acceptable to the applicant.
In the event that the Respondent withholds approval, the Applicant may seek a relisting for the determining the identity of the real estate agent and solicitor and, in the event that approval was unreasonably withheld the Respondent may be at risk of an adverse costs order.
On the appointment of a solicitor and a real estate agent, the Respondent’s solicitors are authorised to issue the letter of instructions for each and shall do so within 14 days.
The applicant is to use the proceeds of sale of the properties as follows:
(a)To pay out the mortgage secured over the sale property and any of the other named properties that are cross collateralised;
(b)To pay outstanding rates and charges and fees related to the sale of the property; and
(c)Any balance is to be held in the conveyancing solicitor’s trust account pending further order.
The Applicant is restrained from further encumbering the properties or incurring further liabilities against the properties…

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 Paintal and Paintal

Details

AGLC: Paintal and Paintal [2018] FamCA 922
Case: [2018] FamCA 922
Decision Date: 15 November 2018

CaseChat Overview and Summary

This matter concerned an application before Gill J in the Federal Circuit Court of Australia, brought by the Applicant (father) and the Respondent (mother) concerning their child, X. The dispute involved orders relating to the child's welfare, the sale of jointly owned properties, and the disclosure of financial information.

The court was required to determine several key issues. These included whether to grant an injunction restraining the removal of the child from Australia, whether to permit the sale of specific properties owned by the parties, and the terms and conditions under which such a sale should proceed, including the allocation of sale proceeds. Furthermore, the court had to consider the disclosure of various financial documents by the Applicant to the Respondent, and the amendment of existing interim parenting orders regarding child changeovers.

Gill J ordered that each party be restrained by injunction from removing the child X from the Commonwealth of Australia. The Applicant was granted liberty to sell three specified properties, subject to appointing a real estate agent and solicitor, with a process outlined for the nomination and approval of these professionals, and a risk of adverse costs for the Respondent if approval was unreasonably withheld. The proceeds of sale were to be applied first to discharge mortgages and sale-related expenses, with any balance to be held in trust pending further order. The Applicant was also restrained from further encumbering the properties. The court mandated the disclosure of extensive financial documents by the Applicant to the Respondent, and amended interim parenting orders concerning the timing and location of child changeovers. The remaining orders sought by both the Applicant and Respondent were dismissed.

Orders

Orders of the court

Each party is restrained by injunction from removing, permitting or attempting to remove, or from causing or permitting the removal of the child X (born … 2012) from the Commonwealth of Australia.

The Applicant, subject to these orders, is at liberty to cause the sale of the following properties:

(a) B Street, Suburb C in the Australian Capital Territory;

(b) D Street, Suburb E in the Australian Capital Territory; and

In order to effect the sale of the properties the Applicant must appoint a real estate agent and a solicitor.

In order to appoint a real estate agent and a solicitor the Applicant may nominate such to the Respondent for her approval, noting that the respondent nominated three of each who were not acceptable to the applicant.

In the event that the Respondent withholds approval, the Applicant may seek a relisting for the determining the identity of the real estate agent and solicitor and, in the event that approval was unreasonably withheld the Respondent may be at risk of an adverse costs order.

On the appointment of a solicitor and a real estate agent, the Respondent’s solicitors are authorised to issue the letter of instructions for each and shall do so within 14 days.

The applicant is to use the proceeds of sale of the properties as follows:

(a) To pay out the mortgage secured over the sale property and any of the other named properties that are cross collateralised;

(b) To pay outstanding rates and charges and fees related to the sale of the property; and

The Applicant is restrained from further encumbering the properties or incurring further liabilities against the properties until further order;

Other than where the applicant has already provided such documents, the Applicant is to provide to the Respondent within 7 working days the following documents:

(a) Copies of all correspondence to and from the Australian Taxation Office;

(b) Copies of the loan application and all supporting documents for the father’s recent refinance approved on 14 June 2018;

(d) Copies of the original bank transfers for the payments made by the father towards the alleged “loans” by friends and family in India;

(e) Bank statements, balance sheets and ledgers for the X Superannuation Fund for the last three years;

(f) Taxation returns filed for the X Superannuation Fund;

(g) Copies of all statements for any account held by the father with the Commonwealth Bank; and

(h) Details of his account and/or financial advisor and provide the mother with a written authority for the mother and or the solicitor for the mother to inspect any documents held by them on the father’s behalf.

10.

Order 5 of the interim parenting orders made by Judge Tonkin on 29 August 2017 is amended to read as follows:

Changeover shall occur after school on Fridays with the parent with whom the child is living to deliver the child to school and the other parent to collect the child from school. If changeover occurs on a non-school day, changeover shall occur at Suburb H Shopping Centre outside Coles at 5.30pm.

11.

The balance of the orders sought by the Father by way of his Affidavit filed 14 August 2018 are dismissed.

12.

The balance of the orders sought by the Mother by way of her Response to an Application in a Case filed 5 September 2018 are dismissed.

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

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