FEDERAL CIRCUIT COURT OF AUSTRALIA
| REYES & REYES | [2017] FCCA 1625 |
| Catchwords: FAMILY LAW – Property – small asset pool – former matrimonial home and superannuation only assets – intervention of the Husband’s former solicitors – costs sought – previous costs orders not complied with. |
| Legislation: Evidence Act 1995, section 140. |
| Cases cited: Bar & JMR (No.2) [2005] FamCA 386 Briginshaw v Briginshaw [1938] HCA 34 Fields & Smith [2015] FamCAFC 57 |
| Applicant: | MS REYES |
| Respondent: | MR REYES |
| File Number: | MLC 2885 of 2014 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 19 & 20 May 2016 16 June 2016 |
| Date of Last Submission: | 13 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 14 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tulloch |
| Solicitors for the Applicant: | JH Legal |
| The Respondent appeared in person. |
| Counsel for the Independent Children's Lawyer: | Mr Arnold |
| Solicitors for the Independent Children's Lawyer: | Cathleen Corridon & Associates |
ORDERS
Parenting
All previous parenting orders in relation to the child X born (omitted) 2011 (“X”) be discharged.
The Wife have sole parental responsibility for X.
The Husband spend no time with X.
The Husband forthwith remove the video entitled “MLC2885/2014” from the internet broadcasting website YouTube and advise the solicitors for the Wife when he has done so.
Thereafter the Husband be and is hereby restrained from re-posting on YouTube or any other form of social media any material relating to these proceedings.
Within 30 days of receipt, the Wife send copies of school reports and school photographs to the Husband by email and she be at liberty to remove any identifying details from such documentation.
The Wife advise the Husband via email of any illness or injury to X which requires hospitalisation.
For the purpose of compliance with orders 6 and 7 hereof, the Husband provide an email address to the Wife.
Liberty is granted to the Husband to send cards and gifts to X on her birthday and at Christmas, and the Wife be at liberty to review all cards and gifts and assess, edit and censor them for suitability before providing such gifts and/or cards to X.
For the purpose of order 9 hereof, within 30 days of…
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- REYES & REYES [2017] FCCA 1625
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- [2017] FCCA 1625
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CaseChat Overview and Summary
The court was required to determine whether the presumption of equal shared parental responsibility was rebutted, and if so, what parenting orders were in the best interests of X. In relation to property, the court needed to address the division of the limited assets and the outstanding costs orders.
The court found that there was an unacceptable risk to X if the husband retained any parental responsibility, leading to the rebuttal of the presumption of equal shared parental responsibility. Consequently, the court ordered that the wife have sole parental responsibility for X and that the husband have no time with X. The court also made orders restraining the husband from posting material relating to the proceedings on social media and requiring him to remove a specific video from YouTube. Regarding property, the court ordered the release of funds to the wife to satisfy previous costs orders and then the release of the remainder of the proceeds of sale to the wife. The parties were declared the sole legal and beneficial owners of property in their respective possession, with specific provisions for joint bank accounts and insurance policies.
Orders
Orders of the court
Parenting
1.
All previous parenting orders in relation to the child X born (omitted) 2011 (“X”) be discharged.
2.
The Wife have sole parental responsibility for X.
3.
The Husband spend no time with X.
4.
The Husband forthwith remove the video entitled “MLC2885/2014” from the internet broadcasting website YouTube and advise the solicitors for the Wife when he has done so.
5.
Thereafter the Husband be and is hereby restrained from re-posting on YouTube or any other form of social media any material relating to these proceedings.
6.
Within 30 days of receipt, the Wife send copies of school reports and school photographs to the Husband by email and she be at liberty to remove any identifying details from such documentation.
7.
The Wife advise the Husband via email of any illness or injury to X which requires hospitalisation.
8.
For the purpose of compliance with orders 6 and 7 hereof, the Husband provide an email address to the Wife.
9.
Liberty is granted to the Husband to send cards and gifts to X on her birthday and at Christmas, and the Wife be at liberty to review all cards and gifts and assess, edit and censor them for suitability before providing such gifts and/or cards to X.
10.
For the purpose of order 9 hereof, within 30 days of the date of these orders the Wife provide to the Husband an address or post office box where cards, letters and gifts may be sent.
11.
The appointment of the Independent Children’s Lawyer be and is hereby discharged.
12.
Pursuant to sections 65DA(2) and 62B 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 the Fact Sheet attached hereto and these particulars are included in these orders.
Property
13.
The solicitors for the Wife forthwith release the sum of $5,000 to the Wife from the proceeds of sale of the former matrimonial home held on trust by them, as payment as to the cost order made against the Husband for the Wife on 23 September 2015 and the order for the Wife’s costs to be fixed and reserved on 4 November 2015.
14.
Upon compliance with order 13 hereof, all outstanding orders for costs to be reserved are hereby discharged.
15.
The solicitors for the Wife forthwith release the remainder of the proceeds of sale held on trust for the parties by them to the Wife.
16.
Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:-
(a) the Husband and the Wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, shares, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively;
(b) each party retain absolutely any superannuation benefits, long service leave, sickness payments or other employment entitlements belonging to or earned by each of them;
(c) money standing to the credit of the parties in any joint bank account is to become the property of the Wife;
(d) all insurance policies are to become the sole property of the assured named thereon/in;
(e) each party be solely liable for and indemnify the other party against any liability encumbering any item or property to which that party is entitled to pursuant to these orders; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
17.
A copy of these orders be forward to Messrs Meier Denison Guymer.
18.
Liberty is granted to Messrs Meier Denison Guymer to apply within 28 days of the date of these orders, failing which the Application in a Case filed on 1 May 2016 shall be dismissed.
19.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
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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