SAYER & ASPLEY - [2016] FCCA 66

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAYER & ASPLEY

[2016] FCCA 66

Catchwords:
FAMILY LAW – Children – meaningful relationships with both parents – situational family violence unlikely to recur – suitable accommodation – 15 year old child able to decide upon time with each parent – school holiday time to coincide with father’s leave from work.

FAMILY LAW – Property – credibility of the parties’ evidence - dishonesty on the part of both parties in relation to financial matters – Court’s inability to determine parties’ property interests in (country omitted) or values of those interests – exclude any property in (country omitted) when determining asset pool – contributions.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC,61DA, 65DAA, 65DAC, 65DAC,75, 79, 90MZD

AIF v AMS (1999) 199 CLR 160
Bevan & Bevan (2013) FLC 93-545
Bigelow & Reuter [2006] FamCA 1455
KB and TC (2005) FLC 93-224
Champness & Hanson (2009) FLC 93-407
Clauson& Clauson (1995) FLC 92-595
C & C (2005) FLC 93-220
Ferraro & Ferraro (1993) FLC 92-335
Hickey & Hickey (2003) FLC 93-143
Jones v Dunkel (1959) 101 CLR 298
Lee Steere & Lee Steere (1985) FLC 91-626
Mallet v Mallet (1984) FLC 91-507
MRR v GR (2010) FLC 93-424
Mulvaney & Lane (2009) FLC 93-404
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257
Rolfe and Rolfe (1979) FLC 90-62
Runcorne & Raine [2008] FamCA 837
Russell v Russell (1999) FLC 92-877
Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70
U v U [2002] HCA 36; (2002) 211 CLR 238
Wainder & Wainder (2011) FLC 93-473

Applicant:

MR SAYER

Respondent:

MS ASPLEY

File Number:

MLC 10689 of 2012

Judgment of:

Judge Roberts

Hearing date:

1 & 2 June 2015

Date of Last Submission:

2 June 2015

Delivered at:

Launceston

Delivered on:

28 January 2016

REPRESENTATION

The Applicant appeared unrepresented

Counsel for the Respondent:

Mr A Scriva

Solicitors for the Respondent:

Daniel Lawyers & Associates

ORDERS

Parenting Orders

That MR SAYER (“the husband”) and MS ASPLEY (“the wife”) have equal shared parental responsibility for the children W born (omitted) 2000, X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2011.
That the child W is to live with each of her parents as may be negotiated between W and her parents from time to time.
That the children X, Y and Z are to live with the wife.
That until such time as the husband obtains suitable independent accommodation the children X, Y and Z are to spend time with the husband at such times as may be agreed between the husband and the wife, but failing such agreement as follows:
(a)each alternate weekend during school terms from after school on Friday until the start of school on the following Monday; and
(b)for four weeks during the children’s school holidays to coincide with the husband arranged leave from his employment.
That when the husband obtains suitable independent accommodation the time provided for in…

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 SAYER & ASPLEY

Details

AGLC: SAYER & ASPLEY [2016] FCCA 66
Case: [2016] FCCA 66
Decision Date: 28 January 2016

CaseChat Overview and Summary

In *Sayer & Aspley*, heard by Judge Roberts, the dispute concerned parenting arrangements and the division of property between the husband, Mr. Sayer, and the wife, Ms. Aspley. The court was required to make orders regarding the children's living arrangements and time with each parent, as well as determine how the parties' assets and liabilities would be divided.

The legal issues before the court included the determination of appropriate parenting orders, considering the principle of meaningful relationships with both parents and the impact of past situational family violence, which the court found unlikely to recur. The court also had to address the living arrangements for a 15-year-old child and the father's access to the younger children, particularly in light of his need for suitable accommodation. In relation to property, the court was tasked with assessing the credibility of the parties' evidence, acknowledging dishonesty from both regarding financial matters, and determining how to approach the division of assets when the court was unable to ascertain the existence or value of property located in a specified overseas country.

The court applied the Family Law Act principles concerning children's best interests and the presumption of equal shared parental responsibility. It found that the 15-year-old child was capable of deciding her time with each parent, while the younger children would live with the wife. Parenting orders were made to facilitate the father's time with the younger children, contingent on him obtaining suitable independent accommodation, with specific provisions for school holidays to align with his work leave. In property matters, due to the inability to verify overseas assets, the court excluded them from the asset pool. The court ordered that the wife was to obtain a discharge of the husband's liability on the mortgage for the Victorian property and transfer his interest to her. Provisions were made for the wife to occupy the property exclusively and to pay the mortgage, with injunctions restraining the husband from further borrowing against the property or increasing the mortgage liability. If the wife failed to discharge the mortgage within 12 months, the property was to be sold, with proceeds applied first to sale costs, then the mortgage, rates, and finally the balance to the wife. The husband was made solely responsible for specific personal loans and credit card liabilities.

Orders

Orders of the court

Parenting Orders

That MR SAYER (“the husband”) and MS ASPLEY (“the wife”) have equal shared parental responsibility for the children W born (omitted) 2000, X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2011.

That the child W is to live with each of her parents as may be negotiated between W and her parents from time to time.

That the children X, Y and Z are to live with the wife.

That until such time as the husband obtains suitable independent accommodation the children X, Y and Z are to spend time with the husband at such times as may be agreed between the husband and the wife, but failing such agreement as follows:

(a) each alternate weekend during school terms from after school on Friday until the start of school on the following Monday; and

(b) for four weeks during the children’s school holidays to coincide with the husband arranged leave from his employment.

That when the husband obtains suitable independent accommodation the time provided for in Order 4(a) hereof is to be extended from after school on Thursday until the start of school on the following Tuesday in each alternate week.

Property Orders

That within 12 months of the date of these Orders the wife must obtain a discharge of the husband’s liability under the mortgage (“the mortgage”) currently secured over the title to the property situated at and known as Property W in Victoria (“the property”).

That contemporaneously with the wife’s compliance with Order No. 6 hereof, the husband must transfer to the wife all his right title and interest in the property.

That pending compliance with Orders Nos 6 and 7 hereof:

(a) the wife is permitted to occupy the property to the exclusion of the husband;

(b) the husband is restrained by injunction from using his equity in the property as security for any further borrowings whatsoever

(d) the wife must pay the regular repayments of principal and interest under the terms of the mortgage.

That in the event that the wife does not obtain a discharge of the husband’s liability under the mortgage pursuant to Order No 6 hereof within the specified time period, the husband and the wife must then do all things necessary to place the property on the market for sale on such terms as may be agreed between the husband and the wife, but failing agreement on such terms and method of sale as may be determined by the President of the Real Estate Institute of Victoria or his nominee.

10.

That the real estate agent for the sale shall be as nominated by the wife and the wife shall appoint solicitors or conveyancers of her choice to conduct the conveyancing in respect of the said sale.

11.

That upon settlement of the sale of the property, the proceeds of sale shall be applied as follows:

(a) Firstly, to pay all costs, commissions and expenses of the sale;

(b) Secondly, to discharge the mortgage registered against the title to the property;

(d) Finally, the balance to be paid to the wife.

12.

That the husband be solely responsible for the payment of, and indemnify the wife from payment of the following:

(a) the personal credit union loan referred to in paragraph 20 of his affidavit filed 12 May 2015 as having a balance in the sum of $7,001; and

(b) all credit card liabilities referred to in that paragraph of his affidavit.

13.

That other than as is specifically provided for in these Orders the husband and the wife are each solely entitled to the exclusion of the other to all other property and chattels in the possession of each of the parties as at the date of 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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