RICHAM & KEEGAN - [2020] FamCA 331

FAMILY COURT OF AUSTRALIA

RICHAM & KEEGAN

[2020] FamCA 331

FAMILY LAW – PARENTING – Where the parents have a high-conflict relationship – Where the parents have succeeded in making major long term decisions for the child – Order for equal shared parental responsibility – Where the child has a strong and loving relationship with both parents – Order for the child to live with the Mother – Order for significant and substantial time with the father.

FAMILY LAW – PROPERTY – Where it is just and equitable to cause a division of property – Where the husband made greater initial contributions than the wife – Where the contribution should be assessed as 30 per cent to the wife and 70 per cent to the husband – Where there should be an adjustment of 75.2 per cent for section 75(2) of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) ss 60B, 60CC, 60B, 65DAA,75(2) 90XT, 106A

Keating and Keating (2019) FLC 93-894
Kennon and Kennon (1997) FLC 92-757
Makita v Sproules (2001) 52 NSWLR 705
MRR v GR (2010) 240 CLR 462

APPLICANT:

Ms Richam

RESPONDENT:

Mr Keegan

INDEPENDENT CHILDREN'S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

4946

2015

DATE DELIVERED:

24 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

16-20 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

Anne Day & Associates

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Paul Marsh & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Legal Aid NSW

Orders

Parenting Orders

All existing Orders in relation to the child X born … 2009 ("the child") are discharged.
The parties have equal shared parental responsibility for the child.
The child live with the mother.
The child spend time with the father as follows:
4.1during school term time, in each alternate week from the conclusion of school on Friday until the commencement of school on the following Wednesday
4.2from the conclusion of school until 10.00 am on the middle day of the school holiday period in the terms 1, 2 and 3 holidays
4.3from the conclusion of school until 10.00 am on the middle day of the school holiday period in odd-numbered years and from 10.00 am on the middle day until the commencement of school in even-numbered years in the term 4 school holidays.
Notwithstanding the provisions of any other Order herein, the child spend time with the father as follows:
5.1from 6.00 pm on the evening before Father's Day until the commencement of school on the following Monday
5.2from the conclusion of school until 8.00 pm on the child's birthday if the child is not otherwise spending time with the father
5.3from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in each even-numbered year
5.4from 4.00 pm until 8.00 pm on the father's birthday if the child is not otherwise spending time with the father.

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 RICHAM & KEEGAN

Details

AGLC: RICHAM & KEEGAN [2020] FamCA 331
Case: [2020] FamCA 331
Decision Date: 24 April 2020

CaseChat Overview and Summary

This matter concerned parenting and property disputes between Richam and Keegan. The court was required to determine orders regarding the child's living arrangements, time spent with each parent, and the division of the parties' property interests.

The legal issues before the court included whether to make orders for equal shared parental responsibility, where the child should live, and the quantum and nature of time the child would spend with each parent, particularly in light of the parents' high-conflict relationship. Additionally, the court was required to determine whether it was just and equitable to divide the parties' property and, if so, to assess the contributions of each party and consider any necessary adjustments under section 75(2) of the *Family Law Act 1975* (Cth).

Stevenson J ordered that the parties have equal shared parental responsibility for the child. The child was ordered to live with the mother, with significant and substantial time to be spent with the father, including alternate weeks during school terms and specific arrangements for school holidays and public holidays. The court also made detailed orders for the alteration of property interests, including a significant payment from the husband to the wife, the transfer of specific properties and funds, and an allocation from the husband's superannuation to the wife. The orders clarified the sole ownership of various bank accounts and other assets by each party, and appointed the Registrar to execute documents if necessary.

Orders

Orders of the court

Parenting Orders

All existing Orders in relation to the child X born … 2009 ("the child") are discharged.

The parties have equal shared parental responsibility for the child.

The child live with the mother.

The child spend time with the father as follows:

4.1 during school term time, in each alternate week from the conclusion of school on Friday until the commencement of school on the following Wednesday

4.2 from the conclusion of school until 10.00 am on the middle day of the school holiday period in the terms 1, 2 and 3 holidays

4.3 from the conclusion of school until 10.00 am on the middle day of the school holiday period in odd-numbered years and from 10.00 am on the middle day until the commencement of school in even-numbered years in the term 4 school holidays.

Notwithstanding the provisions of any other Order herein, the child spend time with the father as follows:

5.1 from 6.00 pm on the evening before Father's Day until the commencement of school on the following Monday

5.2 from the conclusion of school until 8.00 pm on the child's birthday if the child is not otherwise spending time with the father

5.3 from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in each even-numbered year

5.4 from 4.00 pm until 8.00 pm on the father's birthday if the child is not otherwise spending time with the father.

Notwithstanding the provisions of any other Order herein, the child spend time with the mother as follows:

6.1 from 6.00 pm on the evening before Mother's Day until the commencement of school on the following Monday

6.2 from the conclusion of school until 8.00 pm on the child's birthday, if the child is not otherwise spending time with the mother

6.3 from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in each odd-numbered year

6.4 from 4.00 pm until 8.00 pm on the mother's birthday, if the child is not otherwise spending time with the mother.

The parties effect changeovers at the child's school whenever possible and otherwise at W library.

The child has reasonable telephone and Skype communication with the parent whom she is not living or spending time with at her request.

The parties keep each other informed at all times of:

9.1 illnesses or accidents suffered by the child while in his or her care

9.2 all medications prescribed for the child

9.3 all school social or religious events which the child is to attend

9.4 his and her residential address, telephone numbers and email addresses from time to time

9.5 all other matters pertaining to the welfare of the child.

10.

Each party is at liberty to travel outside of Australia with the child on the following conditions:

10.1 the travelling parent must provide not less than two months' notice of the proposed trip

10.2 not less than four weeks prior to the date of departure, the travelling parent must provide copies of flight tickets, accommodation information, details of travel insurance and methods of contact during the trip.

11.

The parties do all things necessary to ensure that the child maintains a current Australian passport at all times.

Orders for the alteration of property interests

12.

Within three calendar months of the date of these Orders, the husband pay to the wife the sum of $1,259,700.

13.

Simultaneously with such payment by the husband to the wife and conditionally upon same being made within the prescribed period of three calendar months, both parties do all things and execute all documents necessary to effect:

13.1 the transfer to the husband of the whole of the wife's right, title and interest in the property known as B Street, Suburb C and being the land contained in folio identifier …

13.2 the transfer to the husband of the whole of the wife's right, title to and interest in the land contained in folio identifier … and known as the Suburb D property

13.3 payment to the husband all moneys lodged in Misa account …58.

14.

The Court allocates as required by Section 90XT(4) of the Family Law Act 1975 (Cth) a base amount of $190,000 to the mother out of the superannuation interest of Mr Keegan in Super Fund 1.

15.

In accordance with Section 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splitable payment becomes payable in respect of the superannuation interests of Mr Keegan in Super Fund 1 ("the Fund"):

15.1 the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law Superannuation Regulations 2001 using a base amount as defined in Order 14 above (provided that such base amount shall not exceed the value of the interest determined under Section 90XT(2))

15.2 there be a corresponding reduction in the entitlement of Mr Keegan to whom a splitable payment would have been but or for these Orders

15.3 this Order binds the Trustee of Super Fund 1 and these Orders take effect from the operative time being the fourth business day after the date of service of the Orders on the Trustee.

16.

Except as specifically provided by any other Order to the contrary, as against the husband, the wife is the sole owner of and the husband has no interest in:

16.1 the wife's bank accounts

16.2 the wife's superannuation

16.3 all other property (including choses in action) of whatsoever nature and kind in the possession or control of the wife, or to which she is entitled, at the date of making of this Order.

17.

Except as specifically provided by any other order to the contrary, as against the wife, the husband is the sole owner of and the wife has no interest in:

17.1 the husband's bank accounts

17.2 E Pty Ltd

17.3 all other property (including choses in action) of whatsoever nature and kind in the possession or control of the husband, or to which he is entitled, at the date of making of this Order.

18.

In the event either party refuses or neglects to sign any document or do anything required pursuant to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to sign such documents and do such acts on behalf of either party.

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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