Preiss and Preiss - [2017] FamCA 12

FAMILY COURT OF AUSTRALIA

PREISS & PREISS

[2017] FamCA 12

FAMILY LAW – CHILDREN – where the husband seeks a coercive order for the wife to move with him to Israel to enable the continuation of his relationship with their seven year old child – Application refused because of lack of supportive evidence to make such a drastic order.
FAMILY LAW – PROPERTY – where there was uncertainty about the nature of overseas pension funds to be treated as property – where the husband’s family had made what he claimed were loans to both parties but that was denied by the wife – where contribution factors considered – where the husband’s health was a factor for the purposes of s 75(2) but so was the extra responsibility for their child’s support carried by the wife.

Family Law Act 1975 (Cth)

Adamson and Adamson (2014) FLC 93-622
AMS v AIF; AIF v AMS (1999) FLC 92-852
Coghlan and Coghlan (2005) FLC 93-220
Doyle & Rusedski [2016] FamCA 317
Gin and Hing [2010] FamCA 617
Gosper and Gosper (1987) FLC 91-818
Kessey and Kessey (1994) FLC 92-495
Line and Line (1997) FLC 92-729
Morgan and Miles (2007) FLC 93-343
Oswald and Karrington [2016] FamCAFC 152
Pierce and Pierce [1998] FamCA 74; (1999) FLC 92-844
Sampson and Hartnett (No 10) (2007) FLC 93-350
Turner and Turner & Anor [2016] FamCAFC 121
U and U [2002] HCA 36; (2002) FLC 93-112

APPLICANT:

Mr Preiss

RESPONDENT:

Ms Preiss

FILE NUMBER:

MLC

10148

2014

DATE DELIVERED:

18 January 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19-20 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glass

SOLICITOR FOR THE APPLICANT:

Nicholas Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Gadens Lawyers

Orders

That all extant parenting orders are discharged.
That paragraph 1 of the consent minutes placing the name of the child B born … 2009 (“the child”) on the Airport Watch List referred to in the orders made on 13 January 2015 is discharged.
That the husband and the wife have equal shared parental responsibility for the child born ... 2009.
That the child live with the wife.
That the child spend time with the husband as follows:
(a) During school terms, on a fortnightly basis:
(i)In Week 1, from after school (or 3.30pm if a non-school day) on Thursday until before school (or 9.00am if a non-school day) on the following Monday and for a similar period in each alternate week thereafter; and
(ii)In Week 2, from after school (or 3.30pm if a non-school day) on Thursday until before school (or 9.00am if a non-school day) on the Friday in each alternate week thereafter;
(b)For one half of each of the three mid-year school term holidays at times to be agreed and, failing agreement:
(i)For the second half during 2017 and for a similar period in each alternate year thereafter; and
(ii)For the first half during 2018 and for a similar…

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 Preiss and Preiss

Details

AGLC: Preiss and Preiss [2017] FamCA 12
Case: [2017] FamCA 12
Decision Date: 18 January 2017

CaseChat Overview and Summary

In the matter of *Preiss and Preiss*, Cronin J considered parenting orders and property settlement between a husband and wife. The dispute involved the arrangements for their child and the division of their assets, including real estate and shares.

The court was required to determine the terms of parenting orders, specifically concerning the child's living arrangements and time spent with each parent, and to make orders regarding the division of the parties' property. This included the disposition of a property in Suburb Y, funds held in Israel, and shares in K Limited, as well as addressing potential shortfalls in entitlements and the sale of an Israeli apartment.

Cronin J discharged all extant parenting orders and established new arrangements for the child, granting equal shared parental responsibility. The child was ordered to live with the wife, with specific provisions for the child's time spent with the husband during school terms and holidays. The court also made detailed orders for the sale of shares in K Limited and the distribution of proceeds, and for the transfer of the husband's interest in the M Street property to the wife. Further orders addressed the division of Israeli bank funds and the potential sale of an Israeli apartment to satisfy the wife's entitlement, with provisions for interest and liberty to apply.

Orders

Orders of the court

That all extant parenting orders are discharged.

That paragraph 1 of the consent minutes placing the name of the child B born … 2009 (“the child”) on the Airport Watch List referred to in the orders made on 13 January 2015 is discharged.

That the husband and the wife have equal shared parental responsibility for the child born ... 2009.

That the child live with the wife.

That the child spend time with the husband as follows:

(a) During school terms, on a fortnightly basis:

(i) In Week 1, from after school (or 3.30pm if a non-school day) on Thursday until before school (or 9.00am if a non-school day) on the following Monday and for a similar period in each alternate week thereafter; and

(ii) In Week 2, from after school (or 3.30pm if a non-school day) on Thursday until before school (or 9.00am if a non-school day) on the Friday in each alternate week thereafter;

(b) For one half of each of the three mid-year school term holidays at times to be agreed and, failing agreement:

(i) For the second half during 2017 and for a similar period in each alternate year thereafter; and

(ii) For the first half during 2018 and for a similar period in each alternate year thereafter; and

(i) Until the child commences Year 4 on a week-about basis spending the first seven days with the husband and the second period of seven days with the wife and thereafter on an alternating basis save that he shall be returned to the wife no later than 24 hours prior to the commencement of school; and

(ii) From the conclusion of Year 4 of school:

(a) for the second half in 2019/2020 and for a similar period in each alternate year thereafter save that he shall be returned to the wife no later than 24 hours prior to the commencement of school; and

(b) for the first half in 2020/2021 and for a similar period in each alternate year thereafter.

That paragraphs 2 to 4 and 13 and 14 of the husband’s proposed orders as set out in the Outline of Case document dated 16 December 2016 and paragraphs 10, 12, 13, 14, 17, 18, 30 and 31 of the wife’s proposed orders set out in a Case Outline document dated 16 December 2016 are dismissed.

That paragraphs 7-12 of the husband’s said proposed orders and paragraphs 2(d)-(k), 3, 4, 5, 7-9 of the said proposed orders of the wife are adjourned to 9.00am on Friday 27 January 2017 to enable the parties to file minutes of consent orders if so advised and to the extent that such minutes are filed by 4.00pm on 25 January 2017, the parties and their legal practitioners are excused from further attendance.

That 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.

That forthwith, the husband transfer to the wife at her expense his interest in the property at M Street, Suburb Y and the wife indemnify the husband in respect of the mortgage encumbering such property and obtain for him as soon as practicable, any necessary discharge of that mortgage.

10.

That the husband sign any necessary document to transfer to the wife any interest he may have in the funds held on behalf of the parties at X Bank in Israel.

11.

That the husband (as trustee for the husband and the wife) pursuant to these orders forthwith place the shares held by him in K Limited on the market for sale with a broker agreed between the parties and such shares be sold at the best market price on the day listed for sale and upon the sale, the proceeds be applied as follows:

(a) First, to pay all costs, commissions and expenses of the sale;

(b) Secondly, to set aside in an interest bearing account in the joint names of the parties such agreed sum as the parties may be so advised, to pay any taxes anticipated arising from the sale; and

(c) Thereafter, to pay the balance to the wife (subject to such sum not otherwise exceeding her entitlement under these orders).

12.

That the sum referred to in paragraph 11(c) be added to the sum referred to in paragraph 101 in the reasons for judgment this day and the combined sum be divided as to 55 per cent to the wife and 45 per cent to the husband.

13.

That if the entitlement of the wife under paragraph 12 is not reached by the payment to her of the sum referred to in paragraph 11(c), the husband shall have 60 days from the day upon which the amount in paragraph 11(c) is available to the wife to provide the shortfall.

14.

If the husband fails to pay the said shortfall within the time allocated under these orders, he shall forthwith thereafter place the Israeli apartment on the market for sale (as trustee for both he and the wife) and the net proceeds of sale shall be used first, to meet the entitlement of the wife under these orders and the balance thereafter shall belong to the husband.

15.

For the purposes of paragraph 14 of these orders, if the sale of the Israeli apartment becomes necessary, the figure of $746,000 referred to in paragraph 101 of these reasons for judgment shall be altered and be substituted by the net price from its sale including any taxes arising therefrom and the necessary adjustment shall be made accordingly.

16.

That there be liberty to apply in respect of paragraphs 11, 13 and 14 of these orders.

17.

That interest shall accrue on the wife’s entitlement to any unpaid sum arising from paragraph 13 as and from the 60th day from the day referred to in paragraph 13 of these orders.

18.

That all extant applications are otherwise 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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