Schofield and Schofield - [2016] FCCA 523

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHOFIELD & SCHOFIELD

[2016] FCCA 523

Catchwords:
FAMILY LAW – Parenting issues settled first day of final hearing – property issues proceeded as an undefended hearing – proceedings have a long history – history of husband not complying with court orders and failing to meaningfully participate in proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.79, 75

Tate and Tate (2000) FLC 93-047
Chang v Su (2002) FLC 93-117
Weir and Weir (1993) FLC 92-338
Palmer & Rhodes [2015] FCCA 2853

Tate v Tate (2000) FLC 93-047
Turner & Turner and Anor [2015] FamCA 483
Stanford & Stanford (2012) 247 CLR 108
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

Applicant:

MS SCHOFIELD

Respondent:

MR SCHOFIELD

File Number:

MLC 3578 of 2013

Judgment of:

Judge Harland

Hearing date:

15 February 2016

Date of Last Submission:

15 February 2016

Delivered at:

Melbourne

Delivered on:

15 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr Marchetti

Solicitors for the Applicant:

Collards

Counsel for the Respondent:

Ms Gordon

Solicitors for the Respondent:

Mark Halse Barrister and Solicitor

Counsel for the Independent Children’s Lawyer:

Ms McNamee

Solicitors for the Independent Children’s Lawyer:

Perry Weston Lawyers

ORDERS

The wife do all acts and things to instruct her solicitors Collards to release the funds held in trust resulting from the sale of the Property M and Property L properties plus interest, be forthwith paid to the wife less the amounts needed to pay the invoice of (omitted) Accountants and the capital gains tax owing on the Property L property.
That the wife as soon as practicable, in her capacity as Director of (omitted) Pty Ltd (operating the (business omitted) business) do all acts and things to wind up the business and the company and for such purpose the wife be at liberty to utilise such funds earned or received by the business and company to discharge any debts owing or arising with respect to the operation and winding up of the business or company.
That contemporaneously with the winding up of the business and company the wife do all acts and things to vest the Schofield Family Trust.
That pursuant to s.78 Family Law Act1975 (Cth) that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)all items of furniture, furnishings, personalty, chattels and jewellery;
(b)all monies (whether held in cash or in deposit with any financial institution);
(c)any motor vehicle;
(d)all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control or each or in which either has an interest which are not otherwise dealt with in these orders.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to s.106A…

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 Schofield and Schofield

Details

AGLC: Schofield and Schofield [2016] FCCA 523
Case: [2016] FCCA 523
Decision Date: 15 March 2016

CaseChat Overview and Summary

In Schofield and Schofield, Judge Harland of the Family Court of Australia made orders concerning property settlement and parenting arrangements between the parties. The dispute involved the division of assets, including the proceeds from the sale of two properties, a business operated by a company, and the Schofield Family Trust, as well as the allocation of parental responsibility and contact with the children.

The court was required to determine how the parties' financial resources should be divided, including the distribution of funds from property sales, the winding up of a business and associated company, and the vesting of a family trust. Additionally, the court had to address parenting orders, specifically concerning the parental responsibility for the children, the father's contact with them, and the role of the Independent Children's Lawyer.

The orders reflect a consent agreement between the parties. Financially, the wife was directed to release funds from property sales, after deductions for accounting fees and capital gains tax, and to wind up the business and company, using its funds for that purpose. The Schofield Family Trust was to be vested contemporaneously with the business winding up. Each party was declared the sole owner of specified personal property, monies, vehicles, and superannuation interests not otherwise dealt with. The court also made provision for the Registrar to execute documents if a party failed to do so, pursuant to s.106A of the Family Law Act 1975 (Cth).

In relation to parenting, all previous parenting orders were dismissed. The mother was granted sole parental responsibility, and the father was to have no time or communication with the children, except if the children requested contact, which would be facilitated by the mother on a supervised basis initially. The father was permitted to communicate via letters, cards, and gifts, subject to the mother's review. Schools were authorised to provide reports to the father at his expense, but he was prohibited from contacting the schools or their staff. The appointment of the Independent Children's Lawyer was discharged.

Orders

Orders of the court

The wife do all acts and things to instruct her solicitors Collards to release the funds held in trust resulting from the sale of the Property M and Property L properties plus interest, be forthwith paid to the wife less the amounts needed to pay the invoice of (omitted) Accountants and the capital gains tax owing on the Property L property.

That the wife as soon as practicable, in her capacity as Director of (omitted) Pty Ltd (operating the (business omitted) business) do all acts and things to wind up the business and the company and for such purpose the wife be at liberty to utilise such funds earned or received by the business and company to discharge any debts owing or arising with respect to the operation and winding up of the business or company.

That contemporaneously with the winding up of the business and company the wife do all acts and things to vest the Schofield Family Trust.

That pursuant to s.78 Family Law Act 1975 (Cth) that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:

(a) all items of furniture, furnishings, personalty, chattels and jewellery;

(b) all monies (whether held in cash or in deposit with any financial institution);

(d) all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;

in the possession, custody or control or each or in which either has an interest which are not otherwise dealt with in these orders.

That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to s.106A Family Law Act that the Registrar of the Family Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

BY CONSENT IT IS ORDERED:

That all previous Parenting Orders with respect to the children:

X, born (omitted) 2001;

Y, born (omitted) 2004; and

Z, born (omitted) 2009 ("the children") be dismissed.

That the mother have sole parental responsibility for the children of the marriage.

That the father spend no time or communicate with the children of the marriage, save and except as follows:

(a) In the event the children or any of them request that they be able to communicate or spend time with the father, the mother will facilitate such time or communication, on the basis that any time spent would be on a supervised basis initially.

(b) That the father be permitted to communicate with the children by way of letters, cards and gifts and the mother ensure that such items are passed on to the children, after first ensuring that the contents are not contrary to the children's best interests.

Each school any of the children attend be authorised to provide the father at the father's expense, copies of school reports generated after this date in relation to the children.

The preceding paragraph does not allow the father or his agent to:

(a) Contact the school(s);

(b) Contact any of the school(s) staff;

(d) Attend any school(s) extra-curricular and/or school(s) activities.

The mother shall provide a copy of these Orders to the children's current school(s) and any future school(s) they attend.

That the appointment of the ICL be discharged as of 29 February 2016.

Section 65DA(2) and Section 62B apply.

AND IT IS NOTED:

(A) That the ICL intends to meet with the children to explain these Orders and such meeting shall be facilitated by the mother.

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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