FAMILY COURT OF AUSTRALIA
| SALWAY & FEGLEY | [2017] FamCA 410 |
| FAMILY LAW – CHILDREN – Where Orders made for the eldest son to live with the father and the youngest child to live with the mother – Where Orders made for the parties to have sole parental responsibility for the child who lives with them – Where Orders made for the eldest son to spend time with the mother in accordance with the child’s wishes – Where the Court finds that there is a lack of evidence to the contentions made by both the mother and the father against the other that the children are at risk of physical harm –Where the Court finds that the children are at risk of ongoing psychological harm due to the ongoing conflict between the mother and father – Where current parenting arrangements are varied to reduce the interaction between the parties. FAMILY LAW – PROPERTY – Where the parties were married for approximately eighteen years and have three children – Where the Court finds that in the context of a long marriage the parties’ financial contributions are equal – Where the Court finds that non-financial contributions by the wife favour an adjustment to her of 5 per cent –Where the Court finds that section 75(2) factors justify an additional adjustment of 10 per cent in favour of the wife – Where no superannuation splitting order made. |
| Evidence Act 1995 (Cth) s 140 Bevan & Bevan (2013) FLC 93-545 |
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- AGLC
- SALWAY & FEGLEY [2017] FamCA 410
- Case
- [2017] FamCA 410
- Decision Date
CaseChat Overview and Summary
The court was required to determine the most appropriate parenting arrangements for the children, specifically addressing the allegations of risk and the ongoing conflict between the parents. In relation to property, the court needed to assess the parties' financial and non-financial contributions and consider relevant factors under section 75(2) of the Family Law Act 1975 (Cth) to determine a just and equitable distribution of their assets.
McClelland J found a lack of evidence to support the claims of physical harm to the children, but determined that the ongoing parental conflict posed a risk of psychological harm. Consequently, the court varied the parenting orders to reduce interaction between the parents, with each parent to have sole parental responsibility for the child living with them, subject to notification and consideration of the other parent's views. The court found the parties' financial contributions to be equal in the context of a long marriage, but made an adjustment of 5% in favour of the wife for non-financial contributions and a further 10% adjustment under section 75(2) factors.
The orders discharged previous parenting arrangements and established new orders for the children to live with the father (C) and the mother (D), with specific provisions for time spent with the non-resident parent, including consideration of the children's wishes. The property orders involved specific payments from a controlled monies account and the sale of NIB shares, with the net proceeds to be distributed 65% to the wife and 35% to the husband. Other property was declared to be the sole ownership of the party holding it, and the costs of the Independent Children's Lawyer were to be shared equally by the parties.
Orders
Orders of the court
Parenting
1.
All previous Orders in relation to the children, C born … 2002 (“C”) and D born … 2008 (“D”), are discharged.
2.
The father is to have sole parental responsibility for the child C.
3.
The mother is to have sole parental responsibility for the child D.
4.
Prior to either parent exercising sole parental responsibility in relation to Order 2 or Order 3 above:
(a) The other parent shall be notified of the decision to be made for the child at least 14 days before making the decision, unless in the case of emergency when notification shall be provided as soon as practicable.
(b) The parent exercising the sole parental responsibility shall consider any views expressed by the other parent before making the decision.
5.
The child C is to live with the father.
6.
The child D is to live with the mother.
7.
The child C is to spend time with the mother in accordance with his wishes.
8.
The father is to encourage the child C to spend time with the mother as follows:
(a) On each alternate weekend from 10am until 6pm Sunday on the weekend that D is living with the mother.
(b) At all other times as requested by the child C.
9.
The child D is to spend time with the father as follows:
(a) During school terms:
(a) Each alternate weekend from after school Thursday until before school Tuesday. This time shall recommence on the first Thursday after each school holiday period.
(b) For the NSW school holidays at the end of Term 1, Term 2 and Term 3 as agreed between the parties and failing agreement:
(a) In 2017, and each alternate year thereafter, from after school on the last day of school until 5.00pm on the middle Saturday.
(b) In 2018, and each alternate year thereafter, from 5.00pm on the middle Saturday until before school on the first day of the next school term.
(c) For the NSW Christmas school holidays, as agreed between the parties and failing agreement:
(a) In 2017/18, and each alternate year thereafter:
1. From 12 noon Christmas Eve until 12 noon Christmas Day; and
2. From 9.00am on 5 January until 5.00pm on 26 January
(b) In 2018/19, and each alternate year thereafter:
1. From 12 noon Christmas Day until 12 noon Boxing Day; and,
2. From 9.00am on 5 January until 5.00pm 26 January
(d) On the Father’s Day weekend from 9.00am on Father’s Day until before school Monday.
(e) At all other times as agreed between the parties.
10.
Notwithstanding Order 9 above, D is to remain living with the mother as follows:
(a) On the Mother’s Day weekend from 9.00am on Mother’s Day until before school Monday.
(b) From 12 noon Christmas Day until 12 noon Boxing Day in 2017 and each alternate year thereafter.
(c) From 12 noon Christmas Eve until 12 noon Christmas Day in 2018 and each alternate year thereafter.
(d) At all other times as agreed between the parties.
11.
For the purpose of changeover on non-school days, the parties shall meet at the McDonalds Family Restaurant at Suburb P.
12.
The father is to notify the mother at least 14 days prior of any intention to change his residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
13.
The mother is to notify the father at least 14 days prior of any intention to change her residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
14.
Each parent is to keep the other parent informed as to their current residential telephone number, mobile telephone number and email address and advise each other within two days of any such change.
15.
Each parent is to make arrangements at the school that the child in their respective care attends to ensure that both parents can obtain the following information and documents at their own cost:
(a) A copy of all school reports for the children.
(b) Notification for school activities that they may decide to attend.
(c) Notification of parent/teacher nights and the school is informed that it is both parents’ desire to attend such events.
(d) In the event of either child being taken from the school or pre-school for an emergency, remedial or correctional treatment that both parents be informed as soon as practicable.
16.
In the event of either child suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a) The other parent is to be notified as soon as practicable.
(b) The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
17.
Each party is restrained from changing the children’s current schools without the written consent of the other party, save for D’s attendance at High School from Year 7.
18.
Each party is restrained from:
(a) Making critical or derogatory remarks in relation to the other parent, or in relation to a member of the other parent’s family or household, in the presence or hearing of a child and that each party is to do all things necessary to ensure that no third party does so.
(b) Discussing any Court proceedings between the parties, or any allegations made by a party about the other party or a member of the other party’s family, in the presence or hearing of the children, or either of them, and that each party do all things necessary to ensure that no third party does so.
Property
19.
Within seven (7) days of the date of these Orders the parties do all things and sign all documents necessary to cause payment to the wife of a sum of $34,876.80 and payment to the husband of a sum of $35,606.20 from the controlled monies account held by Solicitor, Peter Williams.
20.
Within twenty-eight (28) days of the date of these Orders the husband is to do all things and sign all documents necessary to cause the NIB shares to be sold.
21.
The husband is to appoint a qualified stock broker to assist in the sale of the NIB shares and is to do all things necessary, as directed and recommended by the stock broker, to facilitate the sale of the NIB shares, including considering any advice given by the said broker.
22.
Upon compliance with Order 20 above, the net proceeds of sale of the NIB shares is to be distributed 65 per cent to the wife and 35 per cent to the husband.
23.
Unless it has already occurred, within seven (7) days of the date of these Orders, the wife is to cause the sporting memorabilia to be returned to the husband.
24.
Upon the husband’s production of the receipt for payment of the Origin Energy invoice in the sum of $2,746, the wife cause payment to be made to the husband in the sum of $961.10.
25.
Other than as provided for in these Orders, each party be declared to be the sole owner to the exclusion of the other to the whole of their right, title and interest in all items of property of whatsoever nature and wherever situated held by them including superannuation, bank accounts, real property, money at bank, shares and the like.
ICL Costs
26.
The costs of the Independent Children’s Lawyer are to be paid equally by the husband and wife.
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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