SEIDLER & CERNY - [2019] FamCA 29

FAMILY COURT OF AUSTRALIA

SEIDLER & CERNY

[2019] FamCA 29

FAMILY LAW – CHILDREN – Where there is one child aged six years – Where the child is currently spending nine nights per fortnight with his mother and five nights per fortnight with his father – Where the father seeks a progression to an equal time arrangement – Where the mother seeks that the current orders continue save for a slight change to reduce the number of changeovers – Where it is agreed that the parties will have equal shared parental responsibility – Where the father’s case was to attack the mother’s character and the maternal family – Where there is a risk of the child being exposed to the father’s attitude regarding the mother and maternal family – Where the child is doing well under the current arrangement – Where it is ordered that the current arrangements continue.

FAMILY LAW – PROPERTY – Where the parties cohabited for approximately six years and there is one child of the relationship – Where both parents are highly qualified professionals – Where the father’s initial contribution was greater than that of the mother – Where the mother has had the primary care of the child since separation – Where contributions are assessed to be equal – Where the father has a greater earning capacity than the mother – Where the mother will continue to have greater care of the child – Where there is an adjustment of 10 per cent in favour of the mother – Where the property division is therefore 60 per cent in favour of the mother and 40 per cent in favour of the father.

FAMILY LAW – CHILD SUPPORT – Where the mother seeks a child support departure order – Where the father opposes such an order – Consideration of s 117 of the Child Support (Assessment) Act 1989 (Cth) – Where the parties each have a high income – Where it is just and equitable and otherwise proper to make the orders sought by the mother.

Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 123, 124, 125
Evidence Act 1995 (Cth) s 55
Family Law Act 1975 (Cth) ss 60CC, 65DAA, 75, 79, 117

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Grier & Malphas [2016] FamCAFC 84
In the Marriage of Coghlan (2005) FLC 93-220; [2005] FamCA 429
In the marriage of Ferraro (1993) FLC 92-335; [1992] FamCA 64
In the Marriage of Lenehan (1987) FLC 91-814; [1987] FamCA 8
In the Marriage of Norbis (1986) 161 CLR 513; [1986] HCA 17

In the Marriage of Shewring (1987) 12 Fam LR 139; [1987] FamCA 51

In the Marriage of Zyk (1995) FLC 92-644; [1995] FamCA 135

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

APPLICANT:	Ms Seidler
RESPONDENT:	Mr Cerny

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

6696

2014

DATE DELIVERED:

30 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

10 -…

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: SEIDLER & CERNY [2019] FamCA 29
Case: [2019] FamCA 29
Decision Date: 30 January 2019

CaseChat Overview and Summary

The case of *Seidler & Cerny* concerned a dispute between a mother and father regarding parenting arrangements, property division, and child support for their six-year-old child. The father sought an equal time arrangement, while the mother sought to continue the existing arrangements with minor adjustments to reduce the number of changeovers. Both parties agreed to equal shared parental responsibility. The court also had to determine the division of property and a child support departure order sought by the mother.

The legal issues before the court included whether the existing parenting arrangements should continue or be varied to an equal time arrangement, considering the child's well-being and the father's attitude towards the mother and her family. The court was also required to assess the parties' contributions and future needs to determine a just and equitable property division, and to consider whether to grant a child support departure order under section 117 of the *Child Support (Assessment) Act 1989* (Cth) given the parties' high incomes.

Loughnan J determined that the child was doing well under the current parenting arrangements and that there was a risk of the child being exposed to the father's negative attitude towards the mother and her family. Consequently, the court ordered that the current parenting arrangements continue, with minor adjustments to the schedule. In relation to property, the court found that despite the father's greater initial contribution and earning capacity, the mother's primary care of the child since separation and overall contributions warranted an adjustment. The property was divided 60 per cent in favour of the mother and 40 per cent in favour of the father. Finally, the court found it just and equitable to make a child support departure order, requiring the father to pay $300 per week in periodic child support, in addition to specific education and health-related costs.

Orders

Orders of the court

In addition to the parenting arrangements contained in the Orders made on 13 December 2018, during school term and unless the parties otherwise agree, the child D (“the child”) born … 2012 shall live with the father:

(a) from the conclusion of school each Wednesday until the commencement of school on the following day; and

(b) from the conclusion of school on the second Friday of each school term and on each alternate Friday thereafter, until the commencement of school on the following Monday morning.

And at all other times during school term, the child shall live with the mother.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations that Order creates 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.

Within three months of the date of these Orders (but not before 1 March 2019) the mother is to take all necessary steps and execute all necessary documents to cause the property situated at and known as F Street, Suburb G being the whole of the property contained in Certificate of Title Folio Identifier … to be listed for sale by public auction at the earliest possible date with the reserve price to be $2,800,000 or as otherwise agreed upon between the parties in writing, and that the proceeds of the said sale be dispersed as follows:

(a) in payment of agent’s commission and any fees on sale;

(b) in payment of legal costs and disbursements of the sale;

(c) in discharge of the mortgage to Westpac Banking Corporation being registered dealing no. … and Westpac Banking Corporation loan #18;

(d) in payment of the Capital Gains Tax payable by the mother in relation to the sale of the property and to give effect to this Order the sum of $100,000 (or as otherwise agreed by the parties in writing) is to be held in the trust account of Karras Partners Lawyers or a joint controlled monies account held on behalf of the parties by the conveyancing lawyer as the parties may agree, with the Capital Gains Tax liability to be paid from that account and the balance thereafter (if any) to be divided between the parties in the proportions 60 per cent to the mother and 40 per cent to the father;

(e) in discharge of Westpac Bank loan #69 in the name of Mr and Ms H;

(f) in payment to Mr J Cerny of $75,000;

(g) in payment of $25,000 to the K Bank Loan #26 in the name of the mother;

(h) in payment of $67,000 to the K Bank Loan #18 in the name of the father;

(i) in payment of $99,970 to the L Bank Unsecured Loan #6366 in the name of the father;

(j) in payment of 60 per cent of the remaining proceeds to the mother; and

(k) in payment of the balance of the net proceeds to the father.

The father shall forthwith do all things and sign all documents necessary to transfer his interest in the joint M Bank account #16 to the mother and the mother is to thereafter indemnify the father against all or any liability in relation to the said joint bank account.

Other than as provided for in these Orders, the father and mother be declared to have the sole right, title and interest in:

(a) any chattels, goods, furnishings, bank accounts and other property which are at the date hereof in their possession respectively; and

(b) any money, shares, debentures or superannuation entitlements which stand in their sole name respectively at the date hereof.

By way of Child Support Departure Order the father shall pay child support to the mother in respect of the child, the child, as a periodic sum of $300 per week with the first payment to be made within seven days of these Orders and thereafter such funds to be deposited weekly into a bank account nominated by the mother in writing.

Pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the father shall pay by way of non periodic payments:

(a) half of all education costs including but not limited to school fees of a school the parties agree in writing the child is to attend, tuition fees, all school uniforms (including school shoes and sports shoes), textbooks, extra-curricular school activities, tutoring, computer requisites and excursion fees incurred in relation to the education of the child;

(b) all of the private health insurance premiums referable to the child from time to time;

(c) half of all extra-curricular activity costs for the child, provided the activity has been agreed to by the parties in writing before the expense is incurred; and

(d) half of all medical, hospital, counselling, orthodontic, pharmaceutical, dental and other health professional costs incurred in relation to the child not otherwise covered by the husband’s private health insurance for the child.

The payments made by the father pursuant to Order 7 shall be in addition to and shall not reduce the periodic payments made pursuant to Order 6 or any subsequent order or assessment for periodic payments.

The father and mother shall do all acts and things and give consents and execute all documents and writings necessary to give effect to the Orders made herein.

10.

In the event that either party refuses or neglects to execute any deed or instrument in order to give validity and operation to these Orders, then a Registrar of this Court is hereby empowered pursuant to s 106A of the Act to execute such deed or instrument in the name of the person who has so refused or neglected to comply.

11.

Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other, in relation to the wording of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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