ROGERS & LENARD - [2012] FamCA 551

FAMILY COURT OF AUSTRALIA

ROGERS & LENARD

[2012] FamCA 551

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where the wife seeks orders for the children to live with her in Melbourne and the husband seeks orders for the children to live with him in Sydney – Where the wife had attempted to relocate to Melbourne with the children without the husband’s knowledge or consent – Where the wife has repeatedly failed to facilitate the children spending time with the husband and is unlikely to in the future – Orders for the children to live with the husband in Sydney and spend significant and substantial time with the wife.

FAMILY LAW – PROPERTY SETTLEMENT – Future needs – Where the parties’ contributions to the net matrimonial assets are equal – Where the husband’s household has two income earners and the wife’s household has only one – Where the husband will have the greater burden of the children’s expenses – Orders for a property adjustment of 5 per cent in the wife’s favour.

APPLICANT:

Mr Rogers

RESPONDENT:

Ms Lenard

FILE NUMBER:

SYC

1585

2010

DATE DELIVERED:	13 July 2012
ORDERS DELIVERED:	16 July 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

25, 26, 27, & 28 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Siggins

SOLICITOR FOR THE APPLICANT:

Sweeney Tiggemann

COUNSEL FOR THE RESPONDENT:

Mr Battley

SOLICITOR FOR THE RESPONDENT:

In person

ORDERS

IT IS ORDERED

That the parents have equal shared parental responsibility for the children of the marriage X Rogers born … September 2003 and Y Rogers born … July 2005 (“the children”).
That the children live with the husband.
That during school terms the children spend time with the wife:
(a)       each Thursday from the finish of the school day until Friday morning at the commencement of the school day;
(b)       each alternate weekend from the close of the school day on Friday until the commencement of school on Monday morning or Tuesday if the weekend is a long weekend;
(c)       in the event that Mothers’ Day does not fall on a day when the children will ordinarily be spending time with the wife then the children will spend time with the wife on the weekend of Mothers’ Day in accordance with order 3(b);
(d)       in the event that Fathers’ Day falls on a weekend when the children would ordinarily be spending time with the wife then the wife will not have time with the children that weekend;
(e)       if the wife’s birthday does not fall on a day when the children would ordinarily be spending time with the wife then the children will spend time with the wife on the wife’s birthday from the close of school until 8.00 pm or from 10.00 am until 8.00 pm should the wife’s birthday fall on a weekend.
(f)       In the event that M’s birthday falls on a day when the children would normally be spending time…

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.

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Details

AGLC: ROGERS & LENARD [2012] FamCA 551
Case: [2012] FamCA 551
Decision Date: 13 July 2012

CaseChat Overview and Summary

In this matter before Rees J, the parties, Mr and Mrs Rogers, were in dispute regarding the living arrangements for their two children, X and Y, and the division of their matrimonial assets. The wife sought orders for the children to live with her in Melbourne, having previously attempted to relocate them without the husband's knowledge or consent. The husband sought orders for the children to live with him in Sydney. The wife had also repeatedly failed to facilitate the children spending time with the husband.

The court was required to determine the primary issue of with whom the children should live, considering the paramountcy of the children's welfare. Additionally, the court needed to address the division of the parties' property, taking into account their respective contributions and future needs.

Rees J ordered that the parents have equal shared parental responsibility for the children. Crucially, the court ordered that the children live with the husband in Sydney, and spend significant and substantial time with the wife during school terms and holidays, with detailed provisions for the timing and duration of this time. In relation to property settlement, the court found the parties' contributions to their net matrimonial assets to be equal. However, considering the husband's household has two income earners while the wife's has only one, and that the husband would bear a greater burden of the children's expenses, the court ordered a property adjustment of 5 per cent in the wife's favour. The orders further detailed the division of personal assets, the transfer of monies from a joint account, the sale of properties, and the distribution of proceeds, as well as provisions for capital gains tax and superannuation entitlements.

Orders

Orders of the court

IT IS ORDERED

That the parents have equal shared parental responsibility for the children of the marriage X Rogers born … September 2003 and Y Rogers born … July 2005 (“the children”).

That the children live with the husband.

That during school terms the children spend time with the wife:

(a) each Thursday from the finish of the school day until Friday morning at the commencement of the school day;

(b) each alternate weekend from the close of the school day on Friday until the commencement of school on Monday morning or Tuesday if the weekend is a long weekend;

(c) in the event that Mothers’ Day does not fall on a day when the children will ordinarily be spending time with the wife then the children will spend time with the wife on the weekend of Mothers’ Day in accordance with order 3(b);

(d) in the event that Fathers’ Day falls on a weekend when the children would ordinarily be spending time with the wife then the wife will not have time with the children that weekend;

(e) if the wife’s birthday does not fall on a day when the children would ordinarily be spending time with the wife then the children will spend time with the wife on the wife’s birthday from the close of school until 8.00 pm or from 10.00 am until 8.00 pm should the wife’s birthday fall on a weekend.

(f) In the event that M’s birthday falls on a day when the children would normally be spending time with the wife, then the wife will not spend time with the children on that day.

That in the short school holidays (not including the Christmas holiday period) the wife shall spend time with the children:

(a) In 2012 and each alternate year thereafter from the close of school on the last day of the school term until midday on the day which marks the mid point of the holidays;

(b) In 2013 and each alternate year thereafter from midday on the day which marks the mid point of the holidays until 5.00 pm on the Sunday before school resumes.

That during the Christmas holiday period the wife shall spend time with the children as follows:

(a) In each alternate year commencing in 2012 from the close of school on the last day of the school term until midday on the day which marks the mid point of the Christmas school holiday period;

(b) In 2013 and every alternate year from midday on the day which marks the mid point of the Christmas holiday period until 5.00 pm on the Sunday before school resumes.

That on those occasions when the children’s time with either parent does not commence at the beginning or end of the school day the husband shall deliver the children to the wife at R shopping centre at the commencement of contact and the wife shall return the children to R shopping centre at the conclusion of contact.

On any occasion when either the wife or the husband is required to deliver or collect the children any person or organisation nominated by that parent is entitled to collect or deliver the children.

That each parent when the children are in their care, shall facilitate the children’s contacting by telephone, email or otherwise the other parent at any time and in any event, not less than on two occasions each week.

That subject to these orders the husband shall be solely entitled to the personal assets in his possession at this date.

10.

That subject to these orders the wife shall be solely entitled to the personal assets in her possession at the date of these orders.

11.

That the parties forthwith do all acts and things and sign all documents required to transfer to the wife the monies in the parties’ joint account with the ANZ Bank, the rental income being applied against the mortgage and the parties equally to meet any shortfall.

12.

That from the monies to be received by the husband by virtue of the sale of real estate referred to below the husband shall pay to the wife, from his share of the proceeds of sale, the sum of $23,480.

13.

That the parties do all acts and things and sign all documents required to effect the sale of the R property, the Melbourne property 2, and the Melbourne property1 nd to distribute the net proceeds of sale in the following manner and priority:

(a) In payment of any mortgage registered over the title of any property;

(b) In satisfaction of any capital gains tax assessed consequent upon the sale;

(d) The balance to the husband.

14.

That each of the parties shall provide to the other if requested, or to an accountant engaged by either of them to prepare returns in relation to capital gains tax, any documents which are required to complete any return relating to capital gains tax and any documents required to effect the issue of a Certificate of Occupancy.

15.

That each party shall be solely entitled to the exclusion of the other to his or her respective superannuation entitlement.

16.

That in the event that either party refuses or neglects to sign a document to give effect to these orders then within 7 days of a written request to do so a Registrar of the Family Court of Australia, Sydney Registry, be permitted pursuant to Section 106A of the Family Law Act 1975 to execute any document in the name of the defaulting party required to give effect to these orders.

17.

That pursuant to Sections 65DA(2) and 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 those 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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