SEGAN & BACHRICH - [2011] FamCA 722

FAMILY COURT OF AUSTRALIA

SEGAN & BACHRICH

[2011] FamCA 722

FAMILY LAW - PROPERTY – Assessment of contributions – Where both parties had fewer net assets at the date of hearing than when the parties commenced cohabitation – Where cohabitation less than one year – Where mother had considerably more assets than the father at commencement of cohabitation – Where mother has been solely responsible for the child’s care – Adjustment in relation to s 75(2) matters – Where mother is primary carer of the child – Where mother has shown capacity to reliably earn an income greater than the father – Where both the mother and the father are on high income – Where adjustment in the mother’s favour is just and equitable.

FAMILY LAW - SPOUSAL MAINTENANCE – Whether spousal maintenance order should be discharged at the date to which it is paid of the date of hearing – Whether there is “just cause” under section 83 of the Family Law Act 1975 (Cth) – Where the father had a period of unemployment – Where the father realised assets and borrowed from friends to pay for living expenses – Where the mother returned to full-time work and earns more than the father – Where the mother has represented that she was able to support herself without spousal maintenance – “Just cause” established – Discharge of interim spousal maintenance order and arrears to the date to which they are paid.

FAMILY LAW - CHILD SUPPORT – Child support departure application – Where the mother’s income and property is superior to the father’s – Where mother established grounds for departure for the father to pay half the child’s day care costs and school fees under sections 117(2)(b)(ib) and 117(2)(b)(ii) of the Child Support (Assessment) Act 1989 (Cth)

FAMILY LAW - CHILDREN – Parenting orders – Parental responsibility – Best interests – Where father lives and works in Singapore – Where mother and child live in Australia – Where parties separated before the child was born – Where contact between the child and the father has been limited – Where there is conflict between the mother and the father – Mother granted sole parental responsibility – Orders made to allow for monthly contact between the father and the child incrementally increasing in time until overnight time and holiday time is allowed after the child starts school, provided certain preconditions are met.

Evidence Act 1995 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Collu & Rinaldo [2010] FamCAFC 53
Dwyer v McGuire (1993) FLC 92-420
Farmer & Bramley (2000) FLC 93-060
Gyselman (1992) FLC 92-279
Goode & Goode (2006) FLC 93-286
Harrington v Harrington (2007) FLC 93-317
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Lightfoot & Hampson (1996) FLC 92-663
Lutzke & Lutzke (1979) FLC 90-714
Norbis v Norbis (1986) 161 CLR 513
Pierce & Pierce (1999)…

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 SEGAN & BACHRICH

Details

AGLC: SEGAN & BACHRICH [2011] FamCA 722
Case: [2011] FamCA 722
Decision Date: 8 September 2011

CaseChat Overview and Summary

In the matter of SEGAN & BACHRICH, Ryan J considered property settlement, spousal maintenance, child support, and parenting orders. The dispute involved a mother and father with significant income and assets, where the mother had considerably more assets at the commencement of their less than one-year cohabitation. The mother was the primary carer of the child and had demonstrated a capacity to earn a higher income than the father.

The court was required to determine the appropriate assessment of contributions for property settlement, considering the parties' financial positions at the commencement of cohabitation and at the date of hearing, as well as the mother's sole responsibility for the child's care and her superior earning capacity. Additionally, the court had to decide whether there was "just cause" under section 83 of the *Family Law Act 1975* (Cth) to discharge the interim spousal maintenance order, given the father's period of unemployment and the mother's return to full-time work and increased earning capacity. The court also addressed a child support departure application by the mother, seeking to have the father contribute to daycare and school fees, and determined parenting orders for the child, considering the father's residence and work in Singapore and the limited contact between him and the child.

Regarding property settlement, the court found that an adjustment in the mother's favour was just and equitable, reflecting her greater initial assets and her role as the primary carer, despite both parties having fewer net assets at the hearing than at the commencement of cohabitation. For spousal maintenance, the court found that "just cause" was established for discharging the interim order and arrears, as the mother had returned to full-time work and represented she could support herself, and the father had experienced unemployment and used his assets and borrowed funds for living expenses. In relation to child support, the mother successfully established grounds for a departure application, requiring the father to pay half of the child's daycare and school costs. For parenting, the court granted the mother sole parental responsibility, acknowledging the father's location in Singapore and the limited contact, and made detailed orders for incrementally increasing contact between the father and the child, commencing with supervised time and progressing towards overnight and holiday time, subject to certain preconditions.

The court ordered that prior parenting orders be discharged, with the child to live with the mother and the mother to have sole parental responsibility for major long-term decisions. Specific orders were made for the child to spend time with the father, initially supervised, with a progressive increase in unsupervised time, including overnight stays and holiday periods, commencing from February 2012 and extending to alternate years thereafter. The father was also ordered to pay half of the child's daycare and school fees as non-periodic child support. The father's obligation to pay interim spousal maintenance was discharged as at the date it had been paid, and he was ordered to pay outstanding child support arrears from his December 2011 bonus. Further orders addressed superannuation splitting, with the mother entitled to 100% of splittable payments from the father's MLC Masterkey Superannuation Fund. All outstanding applications were dismissed.

Orders

Orders of the court

Excluding orders made on 16 August 2011, all prior parenting orders made in these proceedings are discharged.

That the child, J Segan (“the child”) born … November 2008 live with the mother.

That the mother have sole parental responsibility for making major long term decisions in relation to the child. To the extent possible the mother shall give the father advance notice of major long term decisions and will take into account his views about how any such decision should be made.

That the child spend time with the father in the presence of Ms S (the maternal grandmother) as follows:

4.1 On Saturday 29 October 2011, from 9.30 am and 11.00 am;

4.2 On Sunday 30 October 2011 from 9.30 am and 11.30 am;

4.3 On Saturday 19 November 2011 from 9.30 am and 11.00 am;

4.4 On Sunday 20 November 2011 from 9.30 am to 11.30 am

with such time to be spent at Location 1.

4.5 On Tuesday 22 November 2011 from 9.30 am to 11.00 am;

4.6 On Wednesday 23 November 2011 from 9.30 am to 11.30 am;

4.7 On Friday 25 November 2011 from 9.30 am to 11.30 am;

with such time to be spent at the park in Sydney Suburb 1 adjacent to L Day Care.

4.8 On Saturday 26 November 2011 from 9.30 am to 11.30 am;

4.9 On Sunday 27 November 2011 from 9.30 am to 11.30 am;

with such time to be spent at Location 1.

4.10 On Saturday 24 December 2011 from 9.30 am to 11.00 am;

4.11 On Monday 26 December 2011 from 9.30 am to 11.30 am;

with such time to be spent at Location 2, and the parties to meet at Location 3.

That the child spend time with the father in the presence of Ms B (the paternal grandmother) as follows:

5.1 Tuesday 27 December 2011 from 9.00 am to 12.00 noon at Location 4;

5.2 Wednesday 28 December 2011 from 9.00 am to 12.00 noon at Location 5;

5.3 Friday 30 December 2011 from 10.00 am to 4.00 pm at Location 2;

5.4 Saturday 31 December 2011 from 10.00 am to 4.00 pm at Location 1;

5.5 Monday 2 January 2012 from 10.00 am to 4.00 pm at Location 6;

That the child spend time with the father, without any third parties being present:

6.1 Commencing from February 2012 up to and including November 2012, for one weekend per month from 10.00 am to 4.00 pm Saturday and 9.00 am to 12.00 noon Sunday,

6.2 In December 2012:

6.2.1 Saturday 22 December 2012 from 10.00 am to 4.00 pm;

6.2.2 Sunday 23 December 2012 from 10.00 am to 4.00 pm;

6.2.3 Monday 24 December 2012 from 10.00 am to 4.00 pm;

6.2.4 Wednesday 26 December 2012 from 10.00 am to 4.00 pm;

6.2.5 Thursday 27 December 2012 from 10.00 am to 4.00 pm;

6.2.6 Saturday 29 December 2012 from 10.00 am to 4.00 pm;

6.2.7 30 December 2012 from 10.00 am to 4.00 pm.

6.3 Subject to Orders 6.5 and 6.6 from February 2013, up to and including the end of Term 1 or until in accordance with Order 6.7 overnight times commences (whichever first occurs) when the child is in kindergarten, for one weekend per month, from 10.00 am to 4.00 pm Saturday and 10.00 am until 2.00 pm Sunday.

6.4 For the visits referred to in Order 6.3, the father shall give the mother 30 days notice.

6.5 In December 2013:

6.5.1 Saturday 21 December from 9.00 am to 5.00 pm;

6.5.2 Monday 23 December from 9.00 am to 5.00 pm;

6.5.3 25 December from 9.00 am to 5.00 pm;

6.5.4 28 December from 9.00 am to 5.00 pm;

6.5.5 29 December from 9.00 am to 5.00 pm;

6.5.6 30 December from 9.00 am to 5.00 pm.

6.6 From 2 January 2014 to 5 January 2014 each day between 9.00 am and 5.00 pm;

6.7 Thereafter from the commencement of Term 2 in 2014 and provided the father has spent time with the child monthly in the preceding two months:

6.7.1 For one weekend per term to be taken as close to the middle weekend of the term as possible, from 9.00 am Saturday to 2.00 pm Sunday and;

6.7.2 Excluding the December/January school holidays, in the first week of each school holiday, from 9.00 am Saturday until 5.00 pm the following Saturday.

6.7.3 In the event that the father fails to spend time in the preceding months as required in the precondition to Order 6.7 overnight or holiday time (whichever is applicable) shall not start until he does.

6.8 In December 2014 / January 2015 from 9.00 am Friday 26 December 2014 until 5.00 pm Friday 2 January 2015.

6.9 From 9.00 am 1 January 2016 until 5.00 pm 8 January 2016 and for the same period each alternate year thereafter.

6.10 From 9.00 am 26 December 2016 until 5.00 pm, 2 January 2017 and for the same period each alternate year thereafter.

6.11 Notwithstanding any orders to the contrary, the father shall spend time with the child on Father’s Day from 9.00 am until 2.00 pm.

Unless otherwise provided in these orders, the father shall collect and return the child at the mother’s residence.

That the father speaks to the child by telephone each Wednesday at 6:00 pm (Sydney time). In the event the child is unavailable the mother shall do her best to have him return the call within 24 hours.

That each party notify the other, as soon as possible, of any serious injury or illness suffered by the child whilst with that party.

10.

That the parties promptly notify each other of any changes to their residential address, landline and mobile telephone numbers and email address.

11.

Subject to any direction by the relevant authority, each party is allowed to attend the child’s day care, school, sports and social events to which parents are invited even when the child is not in his/her care.

12.

That the mother on a reasonably regular basis sends the father an email updating him on information regarding the child.

13.

That the mother forthwith authorise any childcare centre, pre-school or school the child may attend to provide to the father (at his expense) photocopies of reports and newsletters or otherwise pertaining to the education of the child and authorise staff members to discuss the child's progress with the father.

14.

The mother is permitted to take the child out of the Commonwealth of Australia without the consent of the father provided that such travel is for a holiday of not more than three (3) months duration, and:

14.1 the mother gives the father no less than three (3) months written notice;

14.2 travel does not occur within two (2) months of the commencement of overnight or school holiday time between the child and the father; and

14.3 if requested within three months, time forgone by the father with the child is made up on dates agreed between the parties.

15.

That until further order the father is restrained from removing or attempting to remove or causing or permitting the removal of J Segan (“the child”) born … November 2008 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

16.

That each party shall do all acts and things and pay equally any costs necessary to ensure that the child has a current Australian passport, which will be held by the mother.

17.

By way of Child Support Departure Order, commencing 1 January 2012, the father pay to the mother by way of non-periodic child support, one half of the school fees for the child’s attendance at L Day Care.

18.

By way of Child Support Departure Order, upon the child commencing school, the father pay to the mother by way of non-periodic child support, one half of the child’s school fees for the child’s attendance at School 1 or School 2.

19.

That the payments in Orders 17 and 18 are not to be credited against the annual rate of periodic child support payable by the father to the mother pursuant to a Child Support Assessment.

20.

That Orders 21 to 24 have effect from the operative time.

21.

The operative time for Orders 22 to 24 of this order is 7 days from the date of service of a sealed copy of these orders upon the Trustee.

22.

That in accordance with section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to the father from his interest in the MLC Masterkey Superannuation Fund (Account No. … ), the mother is entitled to 100% of each splittable payment out of the father’s interest in the Fund, and there is a corresponding reduction in the entitlement the father would be entitled to receive but for this order.

23.

That, upon the Trustee being accorded procedural fairness in relation to the making of this order, this order shall bind the trustee of the MLC Masterkey Superannuation Fund.

24.

That the Trustee of the Fund, in accordance with the obligations set out under the Act and Family Law (Superannuation) Regulations 2001, shall do all acts and things and sign all such documents as may be necessary to make payment to the mother pursuant to Order 22 of this order.

25.

That the father’s obligation to pay interim spousal maintenance is discharged as at the date to which it has been paid.

26.

Unless he has done so, from the father’s December 2011 bonus payment he shall, within seven (7) days of receipt pay all outstanding child support arrears.

27.

Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.

28.

All outstanding applications are dismissed.

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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