Richards and Richards - [2013] FamCA 976

FAMILY COURT OF AUSTRALIA

RICHARDS & RICHARDS [2013] FamCA 976

FAMILY LAW – CHILDREN – Parental Responsibility – Relocation – Best interests of the children – Where the children currently live in Queensland – Where the mother seeks to relocate the children to New South Wales – Meaningful relationship with both parents – Equal time – Significant and substantial time – Where the mother is not permitted to relocate with the children.
FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Add-backs post Stanford – Contributions – Where the wife has made greater financial and non-financial contributions – Superannuation splitting order – Where a superannuation splitting order is made.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 61DA, 65DAA, 75(2)(o), 79.
Evidence Act 1995 (Cth).

MRR v GR (2010) 240 CLR 461
Stanford & Stanford (2012) 247 CLR 108
Bevan & Bevan [2013] FamCAFC 116
Bowe & Bateman [2013] FamCA 253

APPLICANT: Ms Richards

RESPONDENT: Mr Richards

FILE NUMBER: BRC 1601 of 2011

DATE DELIVERED: 13 December 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 & 25 May 2012
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Burridge

SOLICITOR FOR THE APPLICANT: MacDonnells Law

COUNSEL FOR THE RESPONDENT: Mr Kirk SC

SOLICITOR FOR THE RESPONDENT: Paul A Curtis & Co

Orders
Parenting
(1)That all previous parenting orders are discharged.
(2)That the Mother and the Father have equal shared parental responsibility for the children of the marriage, G born … 2003 and K born … 2005 (“the children”).
(3)That during the periods when the children are in each parent’s care pursuant to these Orders that parent in whose care they are shall have the sole responsibility for their day to day care, welfare and development.
(4)That in compliance with their obligations pursuant to s 65DAC of the Family Law Act, in respect of major long-term issues in relation to the children, the parties shall consult each other by first communicating with each other by telephone or in writing and then, if necessary, meeting together to discuss and agree upon decisions.
(5)That in the event that the parties are unable to resolve any parenting dispute by consultation as provided in paragraph 4 above, they shall attend mediation and with either:
(a) A qualified Family Dispute Resolution Practitioner; or
(b) A Family Relationship Centre (or some similar organisation).
(6)That in the event that the parties are unable to agree on the identity of any proposed mediator or any dispute resolution service then:
(a)The party who first raised the subject matter of the dispute is to submit to the other party a list of not less than three (3) potential family dispute resolution services or providers;
(b)The other party is to select one (1) mediator or family dispute resolution practitioner or provider from that list and give prompt notice of his or her choice to the other party;
(c)The parties are to share equally the costs, if any, of utilising the mediator or Family Dispute Resolution Service…

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 Richards and Richards

Details

AGLC: Richards and Richards [2013] FamCA 976
Case: [2013] FamCA 976
Decision Date: 13 December 2013

CaseChat Overview and Summary

The case of Richards and Richards concerned parenting arrangements and property adjustment between the Mother and the Father. The dispute involved the children of the marriage, G and K, and the division of assets and liabilities. The matter was heard by Forrest J.

The court was required to determine the terms of parenting orders, including the allocation of parental responsibility, the time the children would spend with each parent, and the mechanisms for communication and dispute resolution. Additionally, the court needed to make orders for the adjustment of property between the parties, including the division of vehicles, personal possessions, bank accounts, superannuation interests, and liabilities.

Forrest J made orders discharging previous parenting and spousal maintenance orders. The court ordered equal shared parental responsibility for the children, with each parent having sole responsibility for day-to-day care, welfare, and development when the children are in their care. The orders stipulated a detailed schedule for parenting time, including provisions for school terms, holidays, birthdays, and specific weekends. The court also established protocols for communication between parents and children, and for the notification of significant events and medical information. In relation to property, the Wife was ordered to pay the Husband $126,500 within 21 days and to retain certain assets and liabilities. The Husband was to retain other specified assets and liabilities. A superannuation splitting order was made in favour of the Wife concerning the Husband's interest in the M Superannuation Fund, with provisions for its operation and the right of the trustees to be heard.

Orders

Orders of the court

Parenting

(1) That all previous parenting orders are discharged.

(2) That the Mother and the Father have equal shared parental responsibility for the children of the marriage, G born … 2003 and K born … 2005 (“the children”).

(3) That during the periods when the children are in each parent’s care pursuant to these Orders that parent in whose care they are shall have the sole responsibility for their day to day care, welfare and development.

(4) That in compliance with their obligations pursuant to s 65DAC of the Family Law Act, in respect of major long-term issues in relation to the children, the parties shall consult each other by first communicating with each other by telephone or in writing and then, if necessary, meeting together to discuss and agree upon decisions.

(5) That in the event that the parties are unable to resolve any parenting dispute by consultation as provided in paragraph 4 above, they shall attend mediation and with either:

(a) A qualified Family Dispute Resolution Practitioner; or

(b) A Family Relationship Centre (or some similar organisation).

(6) That in the event that the parties are unable to agree on the identity of any proposed mediator or any dispute resolution service then:

(a) The party who first raised the subject matter of the dispute is to submit to the other party a list of not less than three (3) potential family dispute resolution services or providers;

(b) The other party is to select one (1) mediator or family dispute resolution practitioner or provider from that list and give prompt notice of his or her choice to the other party;

(c) The parties are to share equally the costs, if any, of utilising the mediator or Family Dispute Resolution Service Centre;

(d) Both parties are to attend upon such Family Dispute Resolution Practitioner or Service so selected and make a genuine effort to reach agreement in respect of the matters in dispute.

(7) That both parties may attend any school or school social, cultural, sporting or educational event involving either or both of the children at which parents of children are welcome by the school administration to attend and each party shall:

(a) Inform the other party of any such events he or she becomes aware of in a timely manner; and

(b) Communicate to the other what, if any, arrangements are made for the children to attend any such events.

Parenting time

(8) The children shall live with the mother and spend time with the father at all times as may be agreed between the parties and in the absence of agreement then they shall spend time with the father as follows:

(a) From after school on Thursday until before school on Tuesday every second week during school term, commencing on the first Thursday of term when the children have spent the first half of the previous school holidays in the father’s care and on the second Thursday of term when the children have spent the second half of the previous school holidays in the father’s care;

(b) For half of each school holiday period, being the second half of the holidays in odd numbered years (meaning they will spend the second half of the 2013-2014 Summer school holidays with the father) and the first half in even numbered years;

(c) On the father’s birthday each year, from after school until 6:30 pm if a weekday or from 2:00 pm to 6:30 pm if a Saturday or a Sunday, if they are not otherwise spending time with him on that day pursuant to these orders;

(d) From 5:00 pm on Saturday until before school on Monday morning on the weekend on which Father’s Day falls each year if they are not otherwise spending time with him on that weekend pursuant to these orders;

(e) On each of the children’s birthdays each year, from after school until 6:30 pm if a weekday or from 2:00 pm to 6:30 pm if a Saturday or a Sunday, if they are not otherwise spending time with him on that day pursuant to these orders.

(9) That if the children are spending time with their father pursuant to these orders on their mother’s birthday each year then they shall return to their mother’s care from after school until 6:30 pm if a weekday or from 2:00 pm to 6:30 pm if a Saturday or a Sunday.

(10) That if the children are spending time with their father pursuant to these orders on the weekend on which Mother’s Day falls each year then they shall return to their mother’s care from 5:00 pm on Saturday until before school on Monday morning on that weekend.

(11) That if the children are spending time with their father pursuant to paragraphs 8(a) or (b) of these orders on either of their birthdays, then they shall return to their mother’s care on that day from after school until 6:30 pm if a weekday or from 2:00 pm to 6:30 pm if a Saturday or a Sunday.

(12) That each parent shall ensure that the children are properly supervised by adults whilst in his or her care and that they are not left in the care of other children, at least without first obtaining the approval and consent of the other parent.

(13) That at any time when the children are in the care of either parent pursuant to these orders and that parent or his or her current partner is unable to care for or supervise the children personally, the other parent shall be given the first option to care for the children, before some other third person is engaged to provide that care.

Collection and delivery

(14) That where the transition of the children from one parent’s care to the other parent’s care is to take place pursuant to these orders before school or after school on schooldays, the parent whose care they are transitioning from shall cause the children to be delivered to the school at the commencement of the school day and the parent into whose care they are transitioning shall cause the children to be collected from school at the conclusion of the school day.

(15) That where the transition of the children from one parent’s care to the other parent’s care is to take place pursuant to these orders of an evening on a school day or on weekends or during school holidays then the parent whose care they are transitioning from shall cause the children to be delivered to the residence of the other parent into whose care they are transitioning.

Communication

(16) That the children shall be permitted to initiate communication with the parent in whose care they are not at any particular time by telephone, SMS text message, Skype or email and the parent in whose care they are at any particular time shall inform the children of that and shall facilitate any such communication requested by either child and provide the child or children with privacy for such communication.

(17) That the parent in whose care the children are not at any particular time shall be permitted to communicate with the children by telephone call, SMS text message, Skype or email in response to any such communication received from either child during such time but shall be permitted otherwise to communicate by telephone with the children between the hours of 6:00 pm and 7:00 pm Queensland time each second night that they are in the other parent’s care and the parent in whose care they are at that time shall facilitate any such telephone communication made by the other parent and provide the child or children with privacy for such communication.

Specific issues

(18) That each parent shall notify the other as soon as practicable of any accident, emergency, serious illness or significant injury involving either of the children.

(19) That in the event that either of the children requires medical or hospital treatment, the parent then caring for the children will immediately inform the other parent via telephone, SMS message or email (in that order of priority).

(20) That each parent shall authorise the children’s school or schools to provide each parent with copies of all school reports and other reports on progress and behavioural issues and all school circulars, notices, details of all functions, parent-teacher nights and other activities to which parents are invited as well as school photograph order forms.

(21) That each parent shall authorise any medical or allied health practitioner the children attend upon from time to time to provide each parent with any information he or she may request from time to time regarding either child’s medical health and general welfare, including any diagnosis, proposed treatment or prognosis for the children.

(22) That each parent shall keep the other parent informed at all times of all medical or allied health practitioners consulted in relation to the welfare, care, health or development of either child at all times including but not limited to the particulars of the name, address and contact details of that practitioner.

(23) That each parent shall keep the other parent informed of his and her residential address, home telephone number, mobile telephone number and email address and shall notify the other in writing of any change to any of those within forty-eight (48) hours of any such change.

Property Adjustment

(24) That all previous spousal maintenance orders are discharged.

(25) That the Wife shall retain as her property absolutely, free of any claim by the Husband, the Volkswagen … motor vehicle in her possession, all personal possessions currently in her possession, including household contents and jewellery, and, subject to the obligation to pay the Husband the sum of $126,500 pursuant to the next paragraph of these orders, any money she has in bank accounts in her name, and all of her interests in superannuation funds.

(26) That within 21 days of the date of these orders, the Wife shall pay to the Husband, by payment to the trust account of the solicitors for the Husband, the sum of $126,500.

(27) That the Wife shall retain all liabilities in her name and she indemnifies the Husband against any liability in respect of those.

(28) That the Husband shall retain as his property absolutely, free of any claim by the Wife, the Subaru … motor vehicle, the Toyota … motor vehicle, the motor scooter, the coin collection, all personal possessions currently in his possession, including household contents, and any money he has in bank accounts in his name.

(29) That the Husband shall retain all liabilities in his name, including credit card liabilities, motor vehicle finance debts and personal loans and he indemnifies the Wife against any liability in respect of those.

(30) That pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Husband’s interest in M Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with the regulations, using a base amount, at the operative time in the sum of $45,573 and that there be a corresponding reduction to the entitlement the Husband would have in M Superannuation fund but for this Order.

(31) That the operation of paragraph (30) of this Order is suspended for 21 days from the date of this Order.

(32) That the operative date of the aforesaid Order shall be Friday 10 January 2014, namely 4 clear business days from the expiration of its suspension pursuant to paragraph (31) hereof, subject to the right of the trustees of the M Superannuation Fund to be heard as to any contrary position.

(33) That should the trustees of the M Superannuation Fund wish to be heard by the Court with respect to the superannuation splitting Order, they shall give notice of such intent to this Court through email transmission to the Associate to Justice Forrest at…, copied to the solicitors for each of the parties, within 21 days of the date of this Order.

(34) That the solicitors for the Husband shall, forthwith, give notice to the trustees of the M Superannuation Fund of the making today of the Order contained in paragraphs (30) – (33) hereof, including detail of the precise content of those paragraphs, and they shall also provide them with the email addresses of the solicitors for each of the parties so they can be copied into any notice given to the Court by the trustees that they wish to be heard in respect of the superannuation splitting Order.

(35) Each of the parties has liberty to apply to the Court for any further Order necessary to give effect to this Order.

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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