SEAFORD & PAINE-SEAFORD - [2008] FMCAfam 922

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SEAFORD & PAINE-SEAFORD

[2008] FMCAfam 922

FAMILY LAW – Children – equal shared parental responsibility – substantial and significant time – parental conflict.

FAMILY LAW – Property – contributions – s.75(2) factors.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Telecommunication (Interception & Access) Act 1975

Goode & Goode (2006) FamCA 1346
Levick & Levick (Moore J, 31 January 2003, unreported)
Herbert & Herbert [2006] FMCAfam 254
Lee Steere & Lee Steere (1998) FLC 91-625
Hickey & Hickey (2003) FLC 93-143
AJO v GRO (2005) FLC 93-218
D & D (2003) FamCA 473
Johnston JR et al, “Ongoing post divorce conflict in families contesting custody: Effects on Children of joint custody and frequent access” American Journal of Orthopsychiatry, (1989) 59, 576-92
Smyth B(ed), Parent child contact and post- separation parenting arrangements (2004) AIFS Research report No 9
Tucker A, “Children and their Suitcases”, Australian Family Lawyer (2006) Vol 18 No 4, 1-4

McIntosh J & Chisholm, R, 2008, Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research Australian Family Lawyer Vol 20, No 1, 3-16

Applicant:

MR SEAFORD

Respondent:

MS PAINE-SEAFORD

File Number:

ADC 814 of 2007

Judgment of:

Kelly FM

Hearing dates:

7, 8 & 29 May 2008 & 3 June 2008

Date of Last Submission:

3 June 2008

Delivered at:

Adelaide

Delivered on:

29 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr J Bowler

Solicitors for the Applicant:

David Burrell & Co

Counsel for the Respondent:

Ms M Ross

Solicitors for the Respondent:

Clelands

ORDERS

Children

The parties share equally in parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2003.
[X] and [Y] live with the wife save as otherwise specified in these orders.
[X] and [Y] live with the husband as follows:
(a)During school terms:
(i)on each alternate Thursday from the conclusion of school or 4.00pm until the commencement of school or 9.00am on Friday commencing 11 September 2008 and recommencing on the second Thursday in each school term thereafter;
(ii)on each alternate weekend from 6.00pm Friday until the commencement of school or 9.00am on Monday (or Tuesday in the event Monday is a public holiday) commencing Friday 5 September 2008;
(iii)upon [Y] commencing school then on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday in the event Monday is a public holiday);
(iv)commencing in the 2009 school year, on alternate weekends from the conclusion of school Thursday until the commencement of school on Monday (or Tuesday in the event Monday is a public holiday) commencing on the first Thursday in each school term;
(b)For one half of each school holiday period at times to be agreed between the parties and in default of agreement:
(i)for the first half of each short school holiday period commencing at 6.00pm on the last day of the school term and concluding at 6.00pm on the Saturday one week…

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

Case: [2008] FMCAfam 922
Decision Date

CaseChat Overview and Summary

The case of Seaford & Paine-Seaford before the Federal Magistrates Court of Australia involved a dispute between Mr Seaford and Ms Paine-Seaford regarding the care arrangements for their two children, [X] and [Y], and the financial issues arising from the breakdown of their marriage. The court was required to determine the care arrangements for the children and resolve the financial disputes between the parties. The court considered the primary considerations of the children's best interests and the additional considerations outlined in section 60CC(3) of the Family Law Act 1975. The court also considered the factors set out in section 79 of the Family Law Act 1975 when deciding the property settlement.

The court found that the children should share equally in parental responsibility and live primarily with their mother, with substantial and significant time to be spent with their father. The court ordered that the children live with their father on alternate weekends, and on alternate Thursdays once [Y] commences school, with specific arrangements for handovers and communication between the parties. The court also made orders regarding the children's schooling, enrolment, and overseas travel, as well as non-denigration injunctions and participation in co-parenting programs.

Regarding the property settlement, the court assessed the parties' contributions and found that the husband had made a substantially greater financial contribution to the marriage. The court considered the section 75(2) factors and made an adjustment in favour of the wife. The court concluded that a 52.5/47.5 division of the net matrimonial asset pool was appropriate, with the wife receiving a higher cash adjustment and a lower superannuation splitting order. The court considered the relevant factors under section 79 and concluded that the orders made were just and equitable, in all the circumstances.

Orders