FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sandoz & Sandoz [2024] FedCFamC2F 825
File number(s): PAC 2735 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 2 July 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of child.
FAMILY LAW – PROPERTY – Resulting trust – constructive trust – express trust – trust contentions not made out – just and equitable division of property.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D, 75, 79 Cases cited: Calverley v Green (1984) 155 CLR 242
Gillespe & Ngan [2023] FedCFamC1A 27
Khalif & Khalif [2021] FamCAFC 123
Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62
Lotta & Lotta [2017] FamCA 50
Division: Division 2 Family Law Number of paragraphs: 124 Date of hearing: 3 – 6 June 2024 Place: Parramatta Counsel for the Applicant: Mr Bennett Solicitor for the Applicant: Coleman Grieg Lawyers Counsel for the First Respondent: Mr Ford Solicitor for the First Respondent: Lewarne & Goldsmith Counsel for the Second Respondent: Mr Eardley Solicitor for the Second Respondent: Hammond Nguyen Turnbull Counsel for the Independent Children's Lawyer: Mr Schroder Solicitor for the Independent Children's Lawyer: Shedden & Associates ORDERS
PAC 2735 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SANDOZ
Applicant
AND: MS SANDOZ
First Respondent
MS CANNING
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
2 JULY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Major Decision Making
2.The mother shall have sole parental responsibility for all major decision making for the child, X born in 2015 provided that the mother notifies the father fourteen (14) days prior to any major decision being made in respect of major long term issues.
Live With
3.X shall live with the mother.
Communicate & Spend Time With
4.X shall spend time and communicate with the father during the New South Wales school terms as agreed and failing agreement between the parties as follows:
(a)A facetime call on Monday between 7.30pm - 8.30pm for a duration of no more than 15 minutes with the mother to initiate the facetime call.
(b)X is to be given privacy & the mother is restrained from timing such calls.
(c)In Week 1 X spend time with the father commencing on Thursday 13 June 2024 from Thursday at 3pm or after the conclusion of school until the commencement of school the following Monday or 9am in the event that Monday is not a school day and each alternate week thereafter.
(d)In Week 2 X spend time with the father commencing on Thursday 6 June 2024 at 3:00pm or the conclusion of school until Friday morning at 9.00am or the commencement of school and each alternate week thereafter.
5.For the purposes of these Orders that all changeovers are to occur at school or in the event it is not a school day then changeover shall occur at Suburb B McDonalds, and each party…
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- Sandoz & Sandoz [2024] FedCFamC2F 825
- Case
- [2024] FedCFamC2F 825
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CaseChat Overview and Summary
The court found that the best interests of X were served by awarding sole parental responsibility for major decision-making to Ms Sandoz, subject to her notifying Mr Sandoz fourteen days prior to making any major long-term decisions. X was to primarily live with his mother, with specified visitation times with his father during school terms and alternating weeks over holidays. The court also imposed detailed requirements for communication between the parties, restrictions on physical chastisement, and obligations to share information about X's health, education, and extracurricular activities. Both parents were directed to seek mental health support to better manage their issues affecting co-parenting.
Regarding the property division, the court dismissed the claims for trusts and rejected the contentions that Ms Sandoz had no beneficial interest in the property at C Street, Suburb D. Instead, the court ordered an equitable division of the sale proceeds, awarding 45% to Mr Sandoz and 55% to Ms Sandoz. The court also delineated the specific assets each party was entitled to possess, ensuring a just and equitable distribution.
The court's final orders reflect a comprehensive approach to both parenting and property matters, aiming to provide stability and fairness for X while addressing the financial implications of the separation. The court emphasized the importance of cooperation and communication between the parents to support the child's well-being.
Orders
Orders of the court
PAC 2735 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR SANDOZ
Applicant
AND:
MS SANDOZ
First Respondent
MS CANNING
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
2 JULY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
Major Decision Making
2. The mother shall have sole parental responsibility for all major decision making for the child, X born in 2015 provided that the mother notifies the father fourteen (14) days prior to any major decision being made in respect of major long term issues.
Live With
3. X shall live with the mother.
Communicate & Spend Time With
4. X shall spend time and communicate with the father during the New South Wales school terms as agreed and failing agreement between the parties as follows:
(a) A facetime call on Monday between 7.30pm - 8.30pm for a duration of no more than 15 minutes with the mother to initiate the facetime call.
(b) X is to be given privacy & the mother is restrained from timing such calls.
(c) In Week 1 X spend time with the father commencing on Thursday 13 June 2024 from Thursday at 3pm or after the conclusion of school until the commencement of school the following Monday or 9am in the event that Monday is not a school day and each alternate week thereafter.
(d) In Week 2 X spend time with the father commencing on Thursday 6 June 2024 at 3:00pm or the conclusion of school until Friday morning at 9.00am or the commencement of school and each alternate week thereafter.
5. For the purposes of these Orders that all changeovers are to occur at school or in the event it is not a school day then changeover shall occur at Suburb B McDonalds, and each party be restrained from leaving their motor vehicle, save and except for the purposes of collecting X from the other parent. The parent that is due to spend time with X shall exit the vehicle to collect X whilst the other parent remains seated in the motor vehicle.
Holidays & Special Occasions
6. Unless otherwise agreed between the parties, X shall spend time with the mother and the father on a week about basis during the shorter term school holidays after the conclusion of Terms 1, 2, and 3 as follows:
(a) The first week of the school holidays with the father from the conclusion of the last day of school that X is required to attend, until 10.00am on the middle day of the school holiday period (with such holiday period to include any public holidays and staff development days for the purpose of this calculation); and
(b) The second week of the school holidays with the mother from 10.00am on the middle day of the school holiday period including any public holidays until the commencement of school on the first day of the new term at X’s school (including any staff development days).
7. At the conclusion of the school holiday period, the parties will recommence time in accordance with Order 4(c) (Week 1) as the first week following the conclusion of the school holidays.
8. For the purpose of the school holidays following Term 1, in the event that the Easter period falls within the holiday period then any time that is lost in school holidays for the other party to have time over Easter shall be made up immediately following the Easter special occasions as provided for in these orders by the other party to ensure that the school holidays are equalized between the parties including any period of time for the Easter special occasions.
9. Unless otherwise agreed and varied between the parties, X shall spend time with the mother and father during the longer Christmas School Holiday period at the conclusion of Term 4 in the following manner:
(a) The first seven (7) nights with the father commencing from the last day of school that X attends until 10.00am on the 8th day after the conclusion of school.
(b) The following fourteen (14) nights with the mother with changeover to occur at 10.00am for the purpose of this time.
(c) For the purpose of calculation of the mother's fourteen (14) nights during this period that any night X is with the father for the Christmas Eve shall not be included in the calculation of the mother’s fourteen (14) nights for holidays.
(d) The following fourteen (14) nights with the father with changeover to occur at 10.00am.
(e) The remaining school holiday period with the mother until the commencement of the first day of school that X attends.
10. At the conclusion of the school holiday period, the parties will recommence the periodical time in accordance with Order 4(c) above for the first school term.
11. Unless as otherwise agreed by the mother and the father the following shall apply:
(a) the father shall spend time with X on the following special occasions:
(i) If X is not otherwise in the father’s care from 6pm the day before Father’s Day until 9am, or the commencement of school if a school day, the Monday after Father’s Day.
(b) The mother shall spend time with X on the following special occasions:
(i) if X is not otherwise in the mother's care from 6pm the day before Mother’s Day until 9am, or the commencement of school if a school day, the Monday after Mother’s Day.
Specific Parenting Issues
12. Each party is to keep the other party informed at all times of their address, email address and mobile number, and notify the other within 48 hours of any change to any of those details.
13. Neither party shall physically chastise X.
14. The parties shall:
(a) Keep each other informed of the names and addresses of any medical or other health care practitioner who treats X.
(b) Inform each other, as soon as reasonably practicable, of any medical condition, significant health issue or illness suffered by X.
(c) The parties are authorised to obtain, at his or her own expense, from any treating medical or health practitioner X's medical information and both parties are at liberty to provide a copy of these orders to any treating medical practitioner as required.
(d) The parties are authorised to obtain from any school, sporting organization or other extracurricular activity attended by X information about X's progress, and obtain copies of reports, photographs, correspondence, certificates, and awards received by X (at the requesting parent's cost).
(e) Each party is restrained from denigrating or criticizing the other, or any member of the parties' extended family, in the presence or hearing of X and from permitting X to remain in the presence or hearing of another person denigrating the other.
(f) Each parent to be restrained from attending any extracurricular activity or training session attended by X including but not limited to sporting events, swimming or other non-school related extra curricula activity if the activity does not take place during the party’s time with X pursuant to these orders.
(g) For the purposes of the preceding subparagraph, should X be participating in an end of year function for such activity or final game then both parties shall be at liberty to attend such semi or grand final or end of year celebration noting that each party must maintain an appropriate distance from each other and not engage in contact with the other party.
(h) The mother and the father shall each ensure that they have their own school uniforms, sports uniforms including any uniforms for extracurricular activities and appropriate clothing and shoes for X whilst in their care.
(i) The mother & the father shall each provide the other party with the first right of refusal for any period exceeding 1 night to care for X in the event the party is unable to care for X pursuant to these orders or is otherwise away on leave during any period X is in that parties’ care.
(j) Save and except for emergencies about X, each party is restrained emailing, messaging, phoning or contacting the other party, and for the purpose of this order, the mother & the father are to use a parenting application such as My Family Wizard in respect of parenting issues for X and each parent shall download the parenting App as directed by the Court within 7 days of such order being made.
Overseas Travel
15. The child X born in 2015, a male, be removed from the Airport Watchlist.
16. Both parties do all necessary acts and sign all necessary documents so as to cause:
(a) That X’s Australian passport which is currently held pursuant to Orders made 30 January 2023 by the Parramatta Registry of the Federal Circuit and Family Court of Australia is to be released to the mother and thereafter remain with the mother for safe keeping save and except when X is travelling overseas with the father; and
(b) An updated passport is to be obtained for X at any time a current passport expires or, is due to expire, the parties shall do all acts and things necessary to cause such passport to be re-issued with such cost to be shared equally by the parties.
17. Each of the parties are permitted to internationally travel with X save and except to any country to which there is a ‘DO NOT TRAVEL WARNING’ issued by the Commonwealth Government provided such travel is in their time as set out in these Orders on the basis that the following has occurred:
(a) That the travelling party provides to the non- travelling party with 21 days notice of their intention to take X overseas; and
(b) That the travelling party will furnish to the non-travelling party an accurate itinerary to include the following:
(i) the departure and return dates,
(ii) the country or countries the party and X will be travelling to,
(iii) the approximate dates on which the travelling party and X will arrive and depart each country; and
(iv) a telephone number and address at which the travelling party and X can be contacted in each country.
ICL Discharge
18. Within fourteen days (14) of the date of the making of these orders, the ICL shall make arrangements with a party to meet with X either in person or via an agreed electronic platform to explain the final orders & thereafter is discharged from these proceedings.
AND THE COURT NOTES THAT:
A. The father should consult with his General Practitioner (GP) and seek to obtain a mental health care plan for treatment of possible problematic alcohol consumption and thereafter engage with a psychologist recommended by the GP for such treatment.
B. The mother should consult with her GP and seek to obtain a mental health care plan for treatment of her anxiety in relation to the child spending time with the father and thereafter engage with any psychologist recommended by the GP for such treatment.
AND THE COURT FURTHER ORDERS THAT:
Property
19. The Second Respondent’s application for a declaration that the wife holds her legal interest in the property situate at C Street, Suburb D, NSW on trust for the Second Respondent is dismissed.
20. The wife and Second Respondent’s applications for a declaration pursuant to s 78 of the Family Law Act 1975 (Cth), that the wife has no beneficial interest in the property situate at C Street, Suburb D, NSW, are dismissed.
21. The totality of the sale proceeds held in the trust account of Effective Legal Solutions of $1,088,435, be forthwith dispersed between the parties as follows:
(a) Husband: 45 per cent,
(b) Wife: 55 per cent.
22. Simultaneously with the above Order, the wife shall pay to the husband the sum of $154,894.
23. Except as otherwise provided in these Orders, the husband be solely entitled, to the exclusion of the wife to the following:
(a) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name;
(b) Furniture, furnishings and effects in his possession or control;
(c) All interests in life insurance policies and superannuation funds standing in his sole name;
(d) Any other item of personalty or financial resource in his possession or control.
24. Except as otherwise provided in these Orders, the wife be solely entitled, to the exclusion of the husband to the following:
(a) The wife’s interest in the property situate at and known as C Street, Suburb D, and the wife shall continue to be responsible for any indebtedness of any mortgage over the property and will keep the husband indemnified of any liability or indebtedness in relation to that property;
(b) All motor vehicles in her name;
(c) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name;
(d) Furniture, furnishings and effects in her possession or control;
(e) All interests in life insurance policies and superannuation funds standing in her sole name;
(f) Any other item of personalty or financial resource in her possession or control.
25. Subject to these Orders, each of the husband and the wife release the other from all actions, proceedings, claims, demands, debts, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
26. Each party will do all things necessary including providing all consents to give effect to these Orders in the time periods prescribed in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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