PRAIN & LEVY - [2011] FamCA 745

FAMILY COURT OF AUSTRALIA

PRAIN & LEVY

[2011] FamCA 745

FAMILY LAW – CHILDREN – Whether children’s time with husband should be supervised – Appropriate steps for gradual increase in time children spend with husband including progression to overnight time – Arrangements for the Jewish High Holidays – Orders made for children to spend unsupervised time with husband – Children’s increased time including progression to overnight time in accordance with recommendations of family report writer – Parties reached agreement as to the Jewish High Holidays

FAMILY LAW – PROPERTY – HOGAN ORDER – Determination that it is just that husband be provided $250,000 for litigation funding and that such be characterised at the trial as an addback against husband

Family Law Act 1975 (Cth) s 60CC, s 79

A & A (1988) FLC 92-800
Goode & Goode (2006) FLC 93-286
Harris & Harris (1993) FLC 92-378
Russell & Close [1993] FamCA 62
Strahan & Strahan (2011) FLC 93-466
Zschokke & Zschokke (1993) FLC 92-693

APPLICANT:

Mr Prain

RESPONDENT:

Ms B Levy

FILE NUMBER:

MLC

3288

2011

DATE DELIVERED:

14 September 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

O’Reilly J

HEARING DATE:

12 and 13 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Geddes QC with him Ms Stewart

SOLICITOR FOR THE APPLICANT:

Ms Grobtuch

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Ackman QC with him Ms Johns

SOLICITOR FOR THE RESPONDENT:

Mr Teasdale
Kenna Teasdale

Orders

IT IS ORDERED UNTIL FURTHER ORDER

Parenting orders

The interim parenting orders made on 1 June 2011 be varied so that paragraphs 3 and 5.1 no longer operate and the children spend time with the husband unsupervised at all such times as the parties may agree but failing agreement as follows:
a.for four weeks commencing next Monday:
i.       each Monday and Wednesday from 5.30pm until 6.30pm
ii.      each alternate Saturday from 9.00am until 6.30pm
iii.    each alternate Sunday from 9.30am until 4.30pm
b.for the following eight weeks:
i.       each Monday and Wednesday from after school until 6.30pm
ii.      on weekends in a two weekly cycle:
A.from 5.00pm Saturday until 4.30pm Sunday on the first weekend
B. from 9.30am until 4.30pm Sunday on the second weekend
c. following that, until the commencement of Term 1 2012:
i.       each Monday and Wednesday from after school until 6.30pm
ii.      on weekends in a two weekly cycle:
A.from after school Friday until 6.30pm Saturday on the first weekend
B. from 5.00pm Saturday until 4.30pm Sunday on the second weekend
d. following that, from the commencement of Term 1 2012 until the review referred to in paragraph 3 of these orders:
i.       each Monday and Wednesday from after school until 6.30pm
ii.      on alternate weekends from after school Friday until 4.30pm Sunday.

AND IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

In relation to High Jewish Holidays, in the terms of the minute of orders Annexure A.

AND IT IS FURTHER ORDERED

Family report

The parties arrange for Ms Z to provide an updated…

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 PRAIN & LEVY

Details

AGLC: PRAIN & LEVY [2011] FamCA 745
Case: [2011] FamCA 745
Decision Date: 14 September 2011

CaseChat Overview and Summary

In the matter of *Prain & Levy*, O’Reilly J of the Family Court of Australia considered parenting and property disputes between the husband and wife. The primary parenting dispute concerned the appropriate steps for increasing the children's unsupervised time with the husband, including a progression to overnight stays, and arrangements for the Jewish High Holidays. The property dispute involved an application by the wife for litigation funding for the husband, to be characterised as an addback against him at trial.

The court was required to determine the terms of interim parenting orders that would facilitate a gradual increase in the children's unsupervised time with the husband, culminating in unsupervised time from the commencement of Term 1 2012. It also needed to make orders regarding the children's time with the husband during the High Jewish Holidays, by consent. Furthermore, the court had to decide whether to grant the wife's application for litigation funding for the husband and, if so, the amount and its characterisation for property settlement purposes.

O’Reilly J made detailed interim parenting orders, varying previous orders to allow for unsupervised time with the husband. These orders prescribed a phased increase in the children's time with the husband, commencing with limited weekday and weekend contact and progressing to overnight stays and alternate weekends from the commencement of Term 1 2012. The court also made consent orders regarding the High Jewish Holidays, as detailed in Annexure A, and noted the parties' agreement in principle to share these holidays in the future. The court ordered the wife to provide $250,000 for the husband's litigation costs, to be paid into his solicitor's trust account and characterised as an addback against the husband at trial. An updated family report was ordered to be provided by 30 May 2012 for a review of the parenting orders. The husband's application for spousal maintenance was listed for a separate hearing.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER

Parenting orders

The interim parenting orders made on 1 June 2011 be varied so that paragraphs 3 and 5.1 no longer operate and the children spend time with the husband unsupervised at all such times as the parties may agree but failing agreement as follows:

a. for four weeks commencing next Monday:

i. each Monday and Wednesday from 5.30pm until 6.30pm

ii. each alternate Saturday from 9.00am until 6.30pm

iii. each alternate Sunday from 9.30am until 4.30pm

b. for the following eight weeks:

i. each Monday and Wednesday from after school until 6.30pm

ii. on weekends in a two weekly cycle:

A. from 5.00pm Saturday until 4.30pm Sunday on the first weekend

B. from 9.30am until 4.30pm Sunday on the second weekend

c. following that, until the commencement of Term 1 2012:

i. each Monday and Wednesday from after school until 6.30pm

ii. on weekends in a two weekly cycle:

A. from after school Friday until 6.30pm Saturday on the first weekend

B. from 5.00pm Saturday until 4.30pm Sunday on the second weekend

d. following that, from the commencement of Term 1 2012 until the review referred to in paragraph 3 of these orders:

i. each Monday and Wednesday from after school until 6.30pm

ii. on alternate weekends from after school Friday until 4.30pm Sunday.

AND IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

In relation to High Jewish Holidays, in the terms of the minute of orders Annexure A.

AND IT IS FURTHER ORDERED

Family report

The parties arrange for Ms Z to provide an updated family report by 30 May 2012 for the purpose of a review of the interim parenting orders after the receipt of that report.

AND IT IS FURTHER ORDERED

Litigation funding

The wife provide litigation funding to the husband of $250,000 to be paid into the husband’s solicitor’s trust account within 21 days, such sum to be used solely for the husband’s litigation costs past and future, including for any forensic report/s and/or valuations he may seek, up to and including the conclusion of a mediation in the matter to be scheduled by the parties in relation to both parenting and property issues, this amount to be characterised at the trial as an addback against the husband.

AND IT IS FURTHER ORDERED

Spousal maintenance

The husband’s application for spousal maintenance $6500 per week be listed before Registrar FitzGibbon on a date to be arranged between the parties and the Court, or otherwise before a judge as may be directed by the Honourable Justice Cronin as the Case Management Judge.

AND IT IS FURTHER ORDERED

The original minute of orders signed by the parties be placed and kept on the Court file.

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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

AND IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable for the parties to brief Counsel, including Queen’s Counsel and two Counsel.

Annexure A

The husband spend time with the children of the marriage on the High Jewish Holidays as follows:

a. on 29 September 2011 from 6.00pm until 10.00pm (and the husband’s time be suspended on 28 September 2011 for Rosh Hashanah)

b. on 30 September 2011 from 9.00am until 4.30pm

c. on 7 April 2012 from 5.00pm until 10.00pm

AND THE COURT NOTES

A. The husband will have all of Yom Kippur in 2012 and the first night of Rosh Hashanah in 2012 and the parties agree in principle that the high holidays will be shared.

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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