PS & OS - [2007] FMCAfam 285

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PS & OS

[2007] FMCAfam 285

FAMILY LAW – Parental responsibility – equal time – principles considered.

FAMILY LAW – Property settlement – liabilities exceed assets – no order.

FAMILY LAW – Spousal maintenance – whether party able to work and obtain employment and adequately support themselves.

Family Law Act 1975, ss.60CC(2), 60CC(3), 60CC(4), 65DA(2), 65L, 65LA, 72(1), 75(2), and 79(4)(d)-(g)

Denning v Denning [2007] FMCAfam 171
Goode & Goode [2006] FamCA 1346
Hickey v Hickey (2003) FLC 93-143
McMullen v McMullen [2007] FMCAfam 243
Taguchi & Taguchi (1987) FLC 91-836

Applicant:

Respondent:

File Number:

MLM 1611 of 2006

Judgment of:

Lucev FM

Hearing dates:

4 and 5 October, 24 and 27 November 2006

Date of Last Submission:

5 March 2007

Delivered at:

Brisbane (with telephone link to Melbourne)

Delivered on:

11 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr A. Crozier-Durham

Solicitors for the Applicant:

Calleas Le Brun & Burke

Counsel for the Respondent:

Mr C. Ham

Solicitors for the Respondent:

Raynal & Associates

Counsel for the Independent Children’s Lawyer:

Ms. P.J. Treyvaud and later Ms J.P. Spehr

Solicitors for the Independent Children’s Lawyer:

MacGregor Solicitors

ORDERS

That all previous parenting orders herein be discharged.
The Husband and Wife have equal shared parental responsibility for the Child, save that the Husband shall have sole parental responsibility for all decisions concerning, and the cost of, the Child’s education, and provided that on any matter:
(a)having more than a minor effect on the Child’s education; and
(b)not being a day-to-day matter concerning the Child’s education,
the Husband must consult and discuss the matter with the Wife before any decision is made, save in a genuine emergency, in which case the Husband must inform the Wife of any decision made as soon as possible.
That the Child live with each of the Husband and Wife on a week about basis, with:
(a)changeover to occur between 6.00 and 6.30 pm each Friday;
(b)the first such changeover to occur on 18 May 2007 at the residence of the parent who had been spending time with the Child as at 9.00 am on 18 May 2007;
(c)thereafter, changeover to occur at the residence of the parent who has been spending time with the child in the preceding week;
provided that:
(d)the Husband may spend time with the Child on up to 14 days in each calendar year (being time which would not otherwise be spent with the Child by the Husband), with no more than seven of those days to be consecutive at any one time, for the purpose of allowing the Child to attend Hindu religious festivals and observances, subject to the Wife being given one calendar months notice of each day or block of consecutive days, with changeover to occur at times nominated by the Husband; and
(e)the Wife may spend time with the Child on up to 14 days in each calendar year (being time which would not otherwise be spent with the Child…

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 PS & OS

Details

AGLC: PS & OS [2007] FMCAfam 285
Case: [2007] FMCAfam 285
Decision Date: 11 May 2007

CaseChat Overview and Summary

The case of PS & OS involved a dispute between the husband and wife regarding the care and custody of their child, as well as property settlement and spousal maintenance. The court was tasked with determining the best interests of the child in terms of parental responsibility and living arrangements, as well as resolving the financial implications of the separation. The court had to consider the principles of equal shared parental responsibility and the need to make arrangements that best served the child's welfare, including the importance of both parents being involved in the child's life. Additionally, the court had to assess the financial circumstances of both parties, including the liabilities and assets, and decide whether spousal maintenance was necessary and if so, what amount would be appropriate.

The court ruled that the husband and wife have equal shared parental responsibility for the child, with specific provisions for the husband to have sole responsibility for educational decisions, subject to consultation with the wife on major educational matters. The child was to live with each parent on a week-about basis, with detailed arrangements for changeovers and special occasions. The court also stipulated that each parent could spend up to 14 days a year with the child for religious festivals, with notice requirements and specific changeover times. The court further mandated that the child have telephone contact with the non-residential parent and that both parents provide each other with necessary contact details and inform the other of any changes. Medical provisions were included, with a requirement for the child to attend a specified medical clinic and for both parents to inform each other of any medical needs. The court ordered supervision by a Family Consultant to ensure compliance with these arrangements.

The court dismissed all other applications and removed the proceedings from the list of cases awaiting hearing. It also ordered that each party retain their personal property, with specific provisions regarding superannuation benefits, insurance policies, and joint tenancy. The husband was held responsible for indemnifying the wife against any debts owed to the husband's family. The court certified the case for Counsel as advocates and included particulars of the obligations and consequences of contravening the orders as per section 65DA(2) of the Family Law Act.

Orders

Orders of the court

That all previous parenting orders herein be discharged.

The Husband and Wife have equal shared parental responsibility for the Child, save that the Husband shall have sole parental responsibility for all decisions concerning, and the cost of, the Child’s education, and provided that on any matter:

(a) having more than a minor effect on the Child’s education; and

(b) not being a day-to-day matter concerning the Child’s education,

the Husband must consult and discuss the matter with the Wife before any decision is made, save in a genuine emergency, in which case the Husband must inform the Wife of any decision made as soon as possible.

That the Child live with each of the Husband and Wife on a week about basis, with:

(a) changeover to occur between 6.00 and 6.30 pm each Friday;

(b) the first such changeover to occur on 18 May 2007 at the residence of the parent who had been spending time with the Child as at 9.00 am on 18 May 2007;

(c) thereafter, changeover to occur at the residence of the parent who has been spending time with the child in the preceding week;

provided that:

(d) the Husband may spend time with the Child on up to 14 days in each calendar year (being time which would not otherwise be spent with the Child by the Husband), with no more than seven of those days to be consecutive at any one time, for the purpose of allowing the Child to attend Hindu religious festivals and observances, subject to the Wife being given one calendar months notice of each day or block of consecutive days, with changeover to occur at times nominated by the Husband; and

(e) the Wife may spend time with the Child on up to 14 days in each calendar year (being time which would not otherwise be spent with the Child by the Wife), with no more than seven of those days to be consecutive at any one time, subject to the Husband being given one calendar months notice of each day or block of consecutive days, with changeover to occur at times nominated by the Wife;

(f) should Mother’s Day or the Wife’s birthday fall on a day on which time is due to be spent with the Husband, that the Child spend time with the Wife from 6.00 pm on the day preceding Mother’s Day or the Wife’s birthday until 6.00 pm on the relevant day, with changeover to occur at the residence of the parent who has been spending time with the Child on the day immediately preceding changeover; and

(g) should Father’s Day or the Husband’s birthday fall on a day on which time is due to be spent with the Wife, that the Child spend time with the Husband from 6.00 pm on the day preceding Father’s Day or the Husband’s birthday until 6.00 pm on the relevant day, with changeover to occur at the residence of the parent who has been spending time with the Child on the day immediately preceding changeover;

and at such other times and on such other conditions as the Husband and Wife may mutually agree in writing signed by both of them.

That the Child be allowed telephone contact with the parent with whom time is not being spent at any time between 4.00 pm and 6.00 pm on a non-changeover day.

That each of the parties provide the other with their residential address and telephone numbers and details of the identity and contact details of any other person who is significantly involved in the life of the said Child from time to time and inform the other of any changes in such address or telephone numbers.

That, save in an emergency, the Child attend the K R medical clinic (or such other medical clinic as the Husband and Wife mutually agree in writing signed by them) and any specialists to whom the Child may be referred from that clinic.

That each of the parties keep the other informed of any illness or injury occurring to the Child whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the Child’s attendance upon a medical practitioner.

Under s.65L of the Family Law Act, that compliance with these orders be supervised by a Family Consultant appointed by the Director of Counselling at the Melbourne Registry of the Family Court of Australia, and further that the Family Consultant so appointed give any party to these orders any assistance reasonably required by that party in relation to compliance with, and the carrying out of, these orders, for not more than 12 months from the date of these orders.

That neither Husband nor Wife denigrate the other within the hearing of the Child.

10.

Unless otherwise specified in these orders:

(a) each party is solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders, including motor vehicles, bank accounts, furniture, personal possessions and like chattels;

(b) each party foregoes any claims they may have to any superannuation benefits belonging to or earned by the other;

(d) each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

11.

That the Husband be responsible for and indemnify the Wife in relation to any debt alleged to be due by the Husband and the Wife to any members of the Husband’s family.

12.

That all extant applications herein be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.

13.

Certify for Counsel as advocates.

14.

Pursuant to s.65DA(2) of the Family Law Act, 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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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