Pappas & Pappas

Case [2008] FMCAfam 790


FEDERAL MAGISTRATES COURT OF AUSTRALIA

PAPPAS & PAPPAS [2008] FMCAfam 790

FAMILY LAW – Child aged five years – final arrangements for care – parties agree presumption of equal shared parental responsibility should apply – whether both reasonably practicable and in child’s best interests for child to live with each of her parents for equal periods on week about basis – nature of parties’ parenting relationship – capacity to communicate effectively – best interests.

PROPERTY – Relationship and marriage of eight years – asset pool – assessment of contributions – whether asset by asset or global approach – weight to be given to gift by one party’s parent – inheritance – s.75(2) factors – just and equitable.

Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA; 65DAC; 75(2), 79(4)

Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335;
Clauson v Clauson (1995) FLC 92-595
Wardman & Hudson (1978) FLC 90-466;
Biltoft & Biltoft (1995) FLC 92-614
Norbis v Norbis (1986) FLC 91-712
McMahon & McMahon (1995) FLC 92-606
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635

D & D [2003] FamCA 473

Goode & Goode (2006) FLC 92-286

C & C (2005) FLC 93-220

Gosper & Gosper (1987) FLC 91-818
Kessey & Kessey (1994) FLC 92-495
Peligrino v Peligrino (1997) FLC 92-789
Pierce & Pierce (1999) FLC 92-844
AJO & GRO (2005) 33 FamLR 134
Ferraro & Ferraro (1992) 16Fam LR 1
Aleksovski v Aleksovksi (1996) FLC 92-705

Levick & Levick (Family Court of Australia) delivered 31 January 2001 (Moore J)

Applicant: MR PAPPAS
Respondent: MS PAPPAS
File Number: ADC 3070 of 2007
Judgment of: Brown FM
Hearing dates: 23 & 24 June 2008
Date of last submission: 11 July 2008
Delivered at: Adelaide
Delivered on: 1 August 2008

REPRESENTATION

Counsel for the Applicant: Mr D Whittle
Solicitors for the Applicant: Moody Rossi & Co
Counsel for the Respondent: Ms Hurley
Solicitors for the Respondent: Pederick Lawyers

ORDERS

  1. The husband and wife have equal shared parental responsibility for the child of the marriage [B] born in 2003 (hereinafter referred to as “the child”). 

  2. The child live with each of her parents for equal periods of time as follows:

    (a)During school term times, on a week about basis, with the child moving between her parents’ respective homes from after school on each Friday provided that on Wednesday of each week the child will spend from after school until 7:30pm that Wednesday with the parent she is not living with during the week concerned;

    (b)For half of each school holiday, the halves to be agreed between the parties and failing agreement to be the first half with the father in 2008 and each even ending year thereafter and the first half with the mother in 2009 and each odd ending year thereafter and the other parent to have the remaining half of each such school holiday.

  3. The child spend time with her parents on the following special occasions:

    (a)In the event…

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AGLC
Pappas & Pappas [2008] FMCAfam 790
Case
[2008] FMCAfam 790
Decision Date

CaseChat Overview and Summary

In the case of Pappas & Pappas, the parties were involved in a dispute regarding the care and custody of their five-year-old child, as well as the division of their assets following the breakdown of their eight-year marriage. The court was required to determine whether the presumption of equal shared parental responsibility should apply, and if it was both reasonably practicable and in the child's best interests for the child to live with each parent for equal periods of time on a week-on, week-off basis. The court also had to assess the contributions made by each party to the asset pool and decide on the appropriate approach for dividing the assets, considering factors such as gifts, inheritance, and section 75(2) of the Family Law Act 1975.

The court found that both parents were capable of effectively communicating and cooperating in the child's best interests, and that it was reasonably practicable for the child to live with each parent for equal periods of time on a week-on, week-off basis. The court further determined that it was in the child's best interests for this arrangement to be implemented. Regarding the property division, the court adopted a global approach in assessing the contributions made by each party, taking into account various factors such as gifts, inheritance, and section 75(2) of the Family Law Act 1975. The court ultimately decided on a just and equitable division of the assets between the parties.

In summary, the court granted the parties equal shared parental responsibility for their child and ordered that the child live with each parent for equal periods of time on a week-on, week-off basis during school terms, with specific arrangements for school holidays, special occasions, and communication between the child and the non-residential parent. The court also divided the assets between the parties in a manner deemed just and equitable, taking into account various factors such as contributions, gifts, inheritance, and section 75(2) of the Family Law Act 1975. The court dismissed all other applications made by the parties.

Orders

Orders of the court

1.

The husband and wife have equal shared parental responsibility for the child of the marriage [B] born in 2003 (hereinafter referred to as “the child”).

2.

The child live with each of her parents for equal periods of time as follows:

(a) During school term times, on a week about basis, with the child moving between her parents’ respective homes from after school on each Friday provided that on Wednesday of each week the child will spend from after school until 7:30pm that Wednesday with the parent she is not living with during the week concerned;

(b) For half of each school holiday, the halves to be agreed between the parties and failing agreement to be the first half with the father in 2008 and each even ending year thereafter and the first half with the mother in 2009 and each odd ending year thereafter and the other parent to have the remaining half of each such school holiday.

3.

The child spend time with her parents on the following special occasions:

(a) In the event that Greek Orthodox Easter does not coincide with Roman Catholic Easter at times to be agreed between the parties so that the child spends equal periods of time with both of them during Greek Orthodox Easter and failing agreement as follows:

(i) With the husband from 3:30pm on Good Friday until 6:00pm on Easter Saturday in 2009 and each alternate year thereafter;

(ii) With the wife from 6:00pm on Easter Saturday until 9:00am on Easter Monday in 2009 and each alternate year thereafter;

(iii) With the husband from 6:00pm on Easter Saturday until 9:00am on Easter Monday in 2010 and each alternate year thereafter; and

(iv) With the wife from 3:30pm on Good Friday until 6:00pm on Easter Saturday in 2010 and each alternate year thereafter.

(b) At Easter at times to be agreed between the parties so that the child spends equal time with both of them during the period of Easter and failing agreement as follows:

(i) With the husband from 3:30pm on Good Friday until 6:00pm on Easter Saturday in 2009 and each alternate year thereafter;

(ii) With the wife from 6:00pm on Easter Saturday until 9:00am on Easter Monday in 2009 and each alternate year thereafter;

(iii) With the husband from 6:00pm on Easter Saturday until 9:00am on Easter Monday in 2010 and each alternate year thereafter; and

(iv) With the wife from 3:30pm on Good Friday until 6:00pm on Easter Saturday in 2010 and each alternate year thereafter.

(c) At Christmas time at times to be agreed between the parties so that the child spends equal time with both of them during Christmas and failing agreement as follows:

(i) With the husband from midday on 24 December 2008 until midday on 25 December 2008 and each alternate year thereafter;

(ii) With the wife from midday on 25 December 2008 until midday on 26 December 2008 and each alternate year thereafter;

(iii) With the wife from midday on 24 December 2009 until midday on 25 December 2009 and each alternate year thereafter; and

(iv) With the husband from midday on 25 December 2009 until midday on 26 December 2009 and each alternate year thereafter.

(d) On each of the parties’ birthdays so that the child spends time with the parent who is not providing the child’s residence on the occasion of such birthday for a period of at least three hours at times to be agreed between the parties and failing agreement to be from 3:30pm until 6:30pm on the occasion of that party’s birthday.

(e) On the child’s birthday so that the child spends at least three hours on her birthday with the parent who is not providing a residence for her on the occasion of her birthday at times to be agreed between the parties and failing agreement to be from 3:30pm until 6:30pm.

(f) In the event that Father’s Day falls on a weekend when the child is in the care of the wife the child will spend from 9:00am until 6:00pm with the father on Father’s Day.

(g) In the event that Mother’s Day falls on a weekend when the child is in the care of the husband the child will spend from 9:00am until 6:00pm with the father on Mother’s Day.

4.

Each parent shall have the right to obtain copies of the said child’s school, academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own cost), fees and enrolment information and such information pertaining to the child’s school and school related sports activities.

5.

Each party has the right to attend at the child’s school for all events that are routinely attended by parents.

6.

Should a medical emergency arise in relation to the said child whilst the said child is in the care of either of her parents then the parent concerned shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and an address of any treating medical practitioner and hospital attended by the child and the location of the child.

7.

The husband and wife shall have the right to communicate with and obtain any information concerning the said child’s physical and mental health and welfare direct from any medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsellor and/or social worker.

8.

The parties be each restrained and an injunction issued restraining each of them from removing the said child from her enrolment at the [Z] Primary School without the written consent of the other party.

9.

The child be at liberty to communicate with the parent with whom she is not living by telephone, text message, email or other electronic means at all reasonable times and the parent with whom the child is then living shall facilitate such communications.

10.

The parties facilitate the child’s regular attendance at any extra curricular activities which the parties have agreed that the child should undertake from time to time.

11.

The parties be restrained and an injunction issue restraining each of them from denigrating the other or members of the other’s family in the presence of the child or permitting any other person to do so.

In full and final settlement of all claims for settlement of matrimonial property:

12.

The balance of the net proceeds of sale of Property W in the State of Queensland be divided between the parties as follows:

(a) The sum of one hundred and twenty-six thousand three hundred and sixty dollars four cents ($126,360.04) to the wife;

(b) The balance to the husband.

13.

The husband indemnify and keep the wife forever indemnified in respect of any liability arising out of his interest in the property known as and situated at Property M, P in the State of South Australia and his partnership in the business known as [X].

14.

The husband be liable for all remaining capital gains tax outstanding in respect of the sale of , Property W in the State of Queensland and keep the wife indemnified in respect of same.

15.

The husband be liable for the payment of the outstanding credit card debt standing in his name and forever keep the wife indemnified in respect of it.

16.

The husband be declared the beneficial owner, to the exclusion of the wife, of the property known as and situate at Property M, P in the State of South Australia and the business known as [X].

17.

The wife retain as her sole property without any claim from the husband:

(a) Her personal effects and clothing currently in her possession;

(b) Her furniture, furnishings and household effects currently in her possession;

(c) The proceeds of sale of the Toyota Corona motor vehicle registered number [omitted];

(d) The Hyundai Elantra motor vehicle currently in the wife’s possession;

(e) All insurance policies, superannuation entitlements and moneys standing in her name in any bank or other financial institution.

18.

Pursuant to section 90MT(4) of the Family Law Act 1975 a base amount of six thousand dollars ($6,000.00) be allocated to the wife in respect of the husband’s superannuation interest in the MLC Master Key Superannuation Fund and that pursuant to section 90MT(1)(a) whenever a splittable payment becomes payable in respect of that interest, the wife is entitled to be paid the amount to be calculated in accordance with the Family Law (Superannuation) Regulations 2001 in respect of that base amount and there is a corresponding reduction in the entitlement of the husband.

19.

The Trustee of the MLC Master Key Superannuation Fund the husband and the wife in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all such documents as may be necessary to calculate the payment entitlement of the wife in accordance with order (18) hereof.

20.

Order (18) of these orders have affect from the operative time which shall be on 1 September 2008.

21.

The solicitor for the wife serve a copy of these orders on the Trustee of the MLC Master Key Superannuation Fund and the Trustee and the parties be given liberty to re-list the matter on giving seven (7) days written notice if the Trustee is unable to comply with the order herein.

22.

The husband retain as his sole property without any claim from the wife:

(a) His personal effects and clothing currently in his possession;

(b) His furniture, furnishings and household effects currently in his possession;

(c) The Holden Commodore motor vehicle registered number [omitted];

(d) The properties to which he is beneficially and legally entitled in Greece; and

(e) All insurance policies, superannuation entitlements and moneys standing in his name in any bank or financial institution other than the superannuation interest referred to in order (18) above.

23.

That all applications herein be otherwise dismissed.

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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