SAFFIN & SAFFIN - [2020] FamCA 785

FAMILY COURT OF AUSTRALIA

SAFFIN & SAFFIN

[2020] FamCA 785

FAMILY LAW – CHILDREN – Interim parenting orders – parental responsibility – with whom the children live – where benefit to the children of a meaningful relationship with both parents – equal shared parental responsibility – orders for the children to spend week-about time with each parent – injunction to restrain relocation – need for the injunction not established.

FAMILY LAW – PROPERTY – interim proceedings – injunctions – where both parties seek to restrain the other from dealing with the profits of the dissolution of the partnership – whether the restraint is proper – orders made.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 79, 114

Family Law Rules 2004 (Cth) r 5.09

Goode & Goode [2006] FamCA 1346
Marriage of Waugh [2000] FamCA 1183
Morgan & Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461
Mullen and De Bry (2006) FLC 93-293
Skyworks NSW Pty Ltd v 32 Drummoyne Pty Ltd [2017] NSWSC 343
Stanford v Stanford (2012) 247 CLR 108
SS v AH [2010] FamCAFC 13

U & U (2002) 211 CLR 238

APPLICANT:

Mr Saffin

RESPONDENT:

Ms Saffin

FILE NUMBER:

CAC

798

2020

DATE DELIVERED:

22 September 2020

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

16 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blank

SOLICITOR FOR THE APPLICANT:

Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT:

Mr Stagg

SOLICITOR FOR THE RESPONDENT:

Parker Coles Curtis

Orders

In relation to the children:

That the mother and father have equal shared parental responsibility in relation to the children of the marriage, X (born … 2013) and Y (born … 2015).
Subject to written agreement to the contrary (including by sms):
(a)the children live with the mother and father respectively in alternate weeks during NSW school term time with changeover to take place at the conclusion of school or preschool each Friday (or 3:00pm if not a school day);
(b)unless otherwise agreed in writing term time shall recommence each term at the return of school for the term to the parent with whom the children did not spend the end of the school holidays;
The children live with each parent for half of each NSW school holiday period on the following basis:
(a)One half of the school holiday period means the number of nights in each holiday period divided by two, and in the event there is an uneven numbered nights the children spend the additional night with the father.
(b)Unless otherwise agreed, the children will spend the first half of the school holiday period with the father.

In relation to the property:

The parties are restrained from dealing with the proceeds of the dissolution of the D partnership, being what remains of the $238,513.51 retained by the Husband, part of which has been identified by him as held in the trust accounts of E Lawyers and Dobinson Davey Clifford Simpson, and the $238,513.51 held in the…

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 SAFFIN & SAFFIN

Details

AGLC: SAFFIN & SAFFIN [2020] FamCA 785
Case: [2020] FamCA 785
Decision Date: 22 September 2020

CaseChat Overview and Summary

In the matter of SAFFIN & SAFFIN, Gill J considered interim parenting and property orders. The dispute involved the parents' responsibilities concerning their two children, X and Y, and their respective claims to restrain each other from dealing with the profits arising from the dissolution of a partnership.

The court was required to determine the appropriate interim parenting arrangements, specifically regarding parental responsibility, the children's living arrangements, and whether an injunction to restrain relocation was necessary. In relation to property, the court had to consider the propriety of restraining both parties from dealing with the proceeds of a partnership dissolution and whether to grant such restraints.

On the parenting aspect, Gill J made orders for equal shared parental responsibility and established a week-about living arrangement for the children during school terms, with specific provisions for changeovers and the commencement of terms. The children were also to spend half of each school holiday period with each parent, with a provision for an additional night with the father in the event of an uneven number of nights. The court did not find the need for an injunction to restrain relocation. For property, the court restrained both parties from dealing with the remaining proceeds of the partnership dissolution, which amounted to $238,513.51, held in various solicitor trust accounts. However, the court permitted each party to withdraw $50,000 for legal expenses. Existing restraining orders were discharged, and applications concerning child support and spousal maintenance were transferred to the Registrar's list.

Orders

Orders of the court

In relation to the children:

That the mother and father have equal shared parental responsibility in relation to the children of the marriage, X (born … 2013) and Y (born … 2015).

Subject to written agreement to the contrary (including by sms):

(a) the children live with the mother and father respectively in alternate weeks during NSW school term time with changeover to take place at the conclusion of school or preschool each Friday (or 3:00pm if not a school day);

(b) unless otherwise agreed in writing term time shall recommence each term at the return of school for the term to the parent with whom the children did not spend the end of the school holidays;

The children live with each parent for half of each NSW school holiday period on the following basis:

(a) One half of the school holiday period means the number of nights in each holiday period divided by two, and in the event there is an uneven numbered nights the children spend the additional night with the father.

(b) Unless otherwise agreed, the children will spend the first half of the school holiday period with the father.

In relation to the property:

The parties are restrained from dealing with the proceeds of the dissolution of the D partnership, being what remains of the $238,513.51 retained by the Husband, part of which has been identified by him as held in the trust accounts of E Lawyers and Dobinson Davey Clifford Simpson, and the $238,513.51 held in the controlled monies account held by the solicitors for the Wife other than in accordance with these orders:

The Husband may withdraw the sum of $50,000 for the payment of legal expenses;

The Wife may withdraw the sum of $50,000 for the payment of legal expenses.

The orders of 16 September 2016 that otherwise restrain the parties in respect of the monies referred to in the above order are discharged.

The Wife’s applications in respect of Child Support and spousal maintenance are transferred to the Registrar’s list, pending application to restore them for determination.

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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