SCUDERI & SCUDERI - [2015] FamCA 656

FAMILY COURT OF AUSTRALIA

SCUDERI & SCUDERI

[2015] FamCA 656

FAMILY LAW – PROPERTY SETTLEMENT – undefended hearing – considerations of the implications of an undefended hearing – whether it is just and equitable to make the order – where the balance of the assets and liabilities of the parties would appear to be uncontroversial – where a global approach is adopted – where there is consideration of the parties contributions.

FAMILY LAW – CHILDREN – equal shared parental responsibility – where there is a report of the family consultant – where there is a psychiatric assessment of the wife – where the children live with the mother – where the children spend substantial and significant time with the father – where the time spend with the father is initially supervised – consideration of whether the orders sought by each of the parties are reasonably practicable – where there are allegations of family violence but no evidence to reasonably support the contention.

Allesch v Maunz (2000) 203 CLR 172
Bevan & Bevan [2014] FamCAFC 19
Goode & Goode (2006) FLC 93-286
Haydon & Bennett & Anor [2012] FamCAFC 89
Lanceley & Lanceley (1994) FLC 92-491
McMahon & McMahon (1976) FLC 90-128
MRR v GR (2010) 240 CLR 461 at 467
Orielo & Orielo (1985) FLC 91-653
Sexton & Sexton [2012] FamCAFC 218
Stanford v Stanford (2012) 247 CLR 108
Weir & Weir (1993) FLC 92-338

Family Law Act 1975 (Cth), s 60B(1) , 60B(2) , s 60CC, s 60CC(2), s 60CC(3), s 61C, s 61D, 61DA, s 62G(2), 65DAA, 65DAA(1), s 65DAA(2), s 65DAA(5), s 65DAC, s 69ZW, s 75(2), s 79, s 79(2), s79(4).

APPLICANT:

Mr Scuderi

RESPONDENT:

Ms Scuderi

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

2087

2012

DATE DELIVERED:

11 August 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

27 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dickson

SOLICITOR FOR THE APPLICANT:

Benedict Battiste Solicitor

COUNSEL FOR THE RESPONDENT:

No appearance Litigant in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Read

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

PROPERTY

In full and final settlement of any claim that either party may have against the other for settlement of property and alteration of interests in property pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”):-
(a)That the husband shall retain as his sole and absolute property free of any claim whatsoever by the wife:-
(i)any monies standing to his sole credit in any financial institution;
(ii)all insurance and life assurance policies currently in his name together with any entitlement or expectations of superannuation benefits;
(iii)his superannuation benefits;
(iv)the items of furniture and household goods currently in his possession; and
(v)any other item of property whether real or person of whatsoever nature and from whatsoever source currently in his possession;
(b)That the wife shall retain as her sole and absolute property free of any claim whatsoever by 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.

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Details

AGLC: SCUDERI & SCUDERI [2015] FamCA 656
Case: [2015] FamCA 656
Decision Date: 11 August 2015

CaseChat Overview and Summary

This matter concerned property settlement and parenting orders between the parties, Mr. and Mrs. Scuderi, made by Berman J. The dispute involved the division of property and the arrangements for the parties' three children, A, T, and M.

The court was required to determine the terms of a full and final settlement of property claims under Part VIII of the *Family Law Act 1975* (Cth), and to make orders regarding the children's living arrangements, parental responsibility, and communication between the parents and the children. Specific issues included the allocation of various assets and debts, the establishment of equal shared parental responsibility, and the detailed schedule for the children's time with each parent, including provisions for supervised contact and telephone communication. The court also needed to address the preparation of a family report, the children's schooling, medical care, and participation in specific programs.

Berman J made orders for the parties to retain specific assets and be responsible for their own debts, thereby settling all property claims. Regarding the children, the court ordered equal shared parental responsibility, with the children to live with the mother. A detailed schedule was established for the children's time with the father, commencing with supervised contact and progressing to unsupervised time, including specific provisions for communication and handover arrangements. The court also ordered the parties to attend a family report, imposed restrictions on changing the children's school, and mandated the mother to facilitate communication between the father and the children's educational and medical providers. The mother was also ordered to ensure the children attend a specific program and to provide the father with a completion certificate.

The proceedings were listed for mention on 20 April 2016.

Orders

Orders of the court

PROPERTY

In full and final settlement of any claim that either party may have against the other for settlement of property and alteration of interests in property pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”):-

(a) That the husband shall retain as his sole and absolute property free of any claim whatsoever by the wife:-

(i) any monies standing to his sole credit in any financial institution;

(ii) all insurance and life assurance policies currently in his name together with any entitlement or expectations of superannuation benefits;

(iii) his superannuation benefits;

(iv) the items of furniture and household goods currently in his possession; and

(v) any other item of property whether real or person of whatsoever nature and from whatsoever source currently in his possession;

(b) That the wife shall retain as her sole and absolute property free of any claim whatsoever by the husband:-

(i) any motor vehicles currently in her possession;

(ii) B Street, Suburb C, South Australia, …;

(iii) any monies standing to her sole credit in any financial institution;

(iv) all insurance and life assurance policies currently in her name together with any entitlement or expectations of superannuation benefits;

(v) her superannuation benefits; and

(vi) the items of furniture and household goods currently in her possession;

(vii) any other item of property whether real or personal of whatsoever nature and from whatsoever source currently in her possession;

(c) That save and except for the enforcement of the orders herein, that each party do hereby release and discharge the other from any liability for any monetary claim, declaration of trust or claim for equitable interest that either now one may have against the other with respect to any property either now or hereafter owned by either of them;

(d) That henceforth each party shall discharge without calling upon the other to contribute thereto any debts contracted for or by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.

CHILDREN

That the parties do have equal shared parental responsibility for the children A born ... 2001 (A), T born … 2003 (T) and M born … 2005 (M) (“the children”).

That until further order the children live with the mother.

That until further order the children live with the father as follows:-

Concluding on 9 September 2015

(a) Commencing 19 August 2015 to 9 September 2015 inclusive, on Wednesday afternoon of each school week from the conclusion of school until 7pm to include an evening meal, with handover at the commencement of the father’s time from school and with the father to return the children to the mother’s home at the conclusion of his time PROVIDED THAT his time with the children be supervised by Ms I.

(b) Commencing 12 September 2015 to 21 November 2015 inclusive, from 10am to 4pm each Saturday with the father collect the children from inside the main entrance of David Jones Department Store, D Shopping Centre and to return the children to the mother’s home at the conclusion thereof.

(c) That as and from 28 November 2015, from the conclusion of school on Friday to 5pm on Saturday and each alternate weekend thereafter, with the father to return the children to the mother’s home at the conclusion thereof.

(d) By telephone with the children for a maximum of 30 minutes on Wednesday of each week at 5.30pm, with the father to telephone the mother’s mobile telephone number namely … or such other number as the mother may supply PROVIDED that the said telephone communication is to take place in the absence of the mother.

That pursuant to s 62G(2) of the Act, the parties and the children shall attend upon and at the direction of a Family Consultant nominated and appointed by the Director of Child Dispute Services of the Adelaide Registry for the purpose of the preparation of a family report, not to be commenced until 25 January 2016 and to be completed by 22 April 2016.

That the parties be restrained from changing the children’s school from Hendon Primary or enrolling them in any other school without the written consent of the other.

That the mother be restrained and an injunction granted restraining her from removing the children from their school on the day that they are to spend time with the father pursuant to these orders SAVE AND EXCEPT in circumstances where a child is ill and on this occasion the mother shall provide the father with a copy of a medical certificate within seven (7) days certifying that the child was too unwell to attend time with the father HOWEVER should one child be ill THEN the other children are to attend with the father.

That the mother is to notify the father if any of the children are not at school on the day that he is to collect them and whether or not she has been able to provide a medical certificate for that child on that day.

That the mother shall ensure that the children attend school on all days that attendance is required unless she has a medical certificate for illness for the child or children and if so she is to provide a copy of that medical certificate to the father within seven (7) days of receiving the said certificate.

10.

That the children attend the E Program and complete their attendance within twelve (12) months of the date of this order, with the mother to ensure their attendance at same and to provide the father with a copy of the said completion certificate upon the conclusion of the program within fourteen (14) days of receipt of same.

11.

The mother do forthwith authorise all medical health professionals, school counsellors, school teachers, the school principal and any extra-curricular activities supervisors to speak with the father as to the progress, care, welfare and development of the said children and each of them and he shall be entitled to receive copies of school notices, reports, photographs and newsletters.

12.

The father be at liberty to attend events at the children’s school to which parents are normally invited AND in particular, to participate in events such as parent/teacher interviews (PROVIDED he arranges a time at which the mother will not be in attendance and he is to provide her with notice of same by SMS message), school assemblies, school events, school days and lessons where there is advocated and promoted parent participation PROVIDING that the father provides the mother with twenty four (24) hours’ notice of same by pre-paid post or SMS message.

13.

That if deemed necessary and requested by the Independent Children’s Lawyer, the mother will make all necessary arrangements and give all proper authorities to enable the Independent Children’s Lawyer to attend upon the children at their respective schools and if necessary speak to the school principal of each of the children’s schools to explain these orders and to provide the children with the father’s address, contact telephone number and other relevant information.

14.

That the proceedings be listed for mention at 9.15am on 20 April 2016.

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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