Sellen and Sellen & Anor - [2017] FamCA 275

FAMILY COURT OF AUSTRALIA

SELLEN & SELLEN AND ANOR

[2017] FamCA 275

FAMILY LAW – CHILDREN – Best interests – Spend time with – Where there is one child who is seven years of age – Where the central parenting dispute relates to whether the child should spend four or five nights with the father during school term and the structure of that time – Where there is a high level of conflict between the parents – Where the single expert was unable to recommend one proposal over the other – Orders made that the child spend four nights per fortnight with the father – Orders made regarding holiday time, travel, passports and special occasions.

FAMILY LAW – PROPERTY - Settlement in relation to marriage – Where it is agreed that the contributions made by the husband exceeded those by the wife – Where it is found that contributions were made in the proportions 75 per cent by the husband and 25 per cent by the wife – Where the parties agree that there should be an adjustment pursuant to s 75(2) in favour of the wife – Where the wife submits that there should be an adjustment in her favour of 17 per cent – Where the husband submits that there should be an adjustment in favour of the wife of 5 to 10 per cent – Where the appropriate adjustment is 12.5 per cent – Where orders are made to reflect an overall division of property in the proportions 62.5 per cent to the husband and 37.5 per cent to the wife.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D, 65DAA, 75(2), 79
Cerini & Cerini [1998] FamCA 143 Gabel & Yardley (2008) FLC 93-386 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 In the Marriage of Kennon (1997) FLC 92-757 Robb & Robb (1995) FLC 92-555 Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Sellen

RESPONDENT:

Ms Sellen

INTERVENOR	C Lawyers
INDEPENDENT CHILDREN’S LAWYER:	Stephen W Bell & Associates

FILE NUMBER:

SYC

2350

2014

DATE DELIVERED:

3 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

27 February - 2 March 2017 & 3 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Longworth

SOLICITOR FOR THE APPLICANT:

Doolan Wagner Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Beckerling

SOLICITOR FOR THE RESPONDENT:

Morris Alexander and Nelson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Breeze

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stephen W Bell & Associates

SOLICITOR FOR THE INTERVENOR:

C Lawyers

Orders

Parental Responsibility

The mother and father will have equal shared parental responsibility for B (“B”), born on … 2010.

Living Arrangements

Except as otherwise provided in these Orders or as agreed between the parents in writing, the child will live with the mother.
During school term the child will live with the father on four overnight occasions each fortnight as follows:
In week 1 – from Thursday after school to before school…

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.

Keep reading for free

Create a free CaseChat account to read Sellen and Sellen & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FamCA 275
Decision Date: 3 May 2017

CaseChat Overview and Summary

The case of Sellen and Sellen & Anor involved a dispute between the parents concerning their seven-year-old child, B, and the division of their property. The central parenting issue revolved around the proposed arrangements for B's time with the father, specifically whether B should spend four or five nights per fortnight with him during school terms and the structure of that time. The parents also had a high level of conflict. In relation to property, the parties agreed that the husband's contributions had exceeded the wife's, with contributions found to be in the proportions of 75 per cent to the husband and 25 per cent to the wife. They also agreed that an adjustment under s 75(2) of the Family Law Act 1975 (Cth) was warranted in favour of the wife, but disagreed on the quantum of that adjustment.

The court was required to determine the best interests of the child, B, in relation to the proposed parenting arrangements, particularly the frequency and structure of time spent with the father during school terms and holidays. The court also had to determine the appropriate adjustment to the property division under s 75(2) of the Family Law Act 1975 (Cth) in favour of the wife, considering the differing submissions of the parties.

In determining the parenting orders, the court noted that the single expert was unable to recommend one proposal over the other. The court ultimately made orders for equal shared parental responsibility, with B to live with the mother, but to live with the father for four overnight occasions each fortnight during school terms, with specific arrangements for week 1 and week 2. Detailed orders were also made regarding holiday time, including shorter school holidays, Christmas holidays, and special days such as Father's Day, Mother's Day, birthdays, and Easter. The court also made comprehensive orders concerning overseas travel, including passport arrangements and notice requirements, and miscellaneous parenting orders addressing extra-curricular activities, communication between parents, and medical emergencies. Regarding the property settlement, the court found that an adjustment of 12.5 per cent in favour of the wife was appropriate, resulting in an overall division of property of 62.5 per cent to the husband and 37.5 per cent to the wife. This was to be effected through the father paying a sum of $696,413 to the mother's solicitors within 42 days, with provisions for the sale of the Suburb G property if this payment was not made. Further orders directed the father to sell or transfer three Country I properties, with 37.5 per cent of the balance of the proceeds to be paid to the mother. The court also made orders for the parties to retain specific assets to their exclusion.

Orders

Orders of the court

Parental Responsibility

(1) The mother and father will have equal shared parental responsibility for B (“B”), born on … 2010.

Living Arrangements

(2) Except as otherwise provided in these Orders or as agreed between the parents in writing, the child will live with the mother.

(3) During school term the child will live with the father on four overnight occasions each fortnight as follows:

In week 1 – from Thursday after school to before school on Friday

In week 2 – from Friday after school to before school on Monday

(4) Subject to overseas travel or special days in accordance with these Orders or as otherwise agreed, during the shorter school holidays the child will live with the father during the first half of the holidays in even numbered years, commencing at the conclusion of school on the last day of term until 11.00 am on the second Sunday of each such period and in odd numbered years the child will live with the father from 11.00 am on the second Sunday of that school holiday period until the commencement of the first day the child is to attend school for the new school term.

(5) Subject to overseas travel or special days in accordance with these Orders or as otherwise agreed, the child will live with the parents on a week-about basis during the Christmas school holidays, the father’s first week commencing at 10.00 am on the second Sunday of the holidays. Changeover will occur at 10.00 am each Sunday thereafter.

(6) By consent, subject to overseas travel in accordance with these Orders or as otherwise agreed, the child will spend:

(a) from 6.00 pm on the Saturday before Father’s Day to 6.00 pm on Father’s Day with the father;

(b) from 6.00 pm on the Saturday before Mother’s Day to 6.00 pm on Mother’s Day with the mother; and

(7) If the child’s birthday is on a school day he will spend between after school and 7.00 pm with the parent he is not otherwise with. In the event that the birthday is not on a school day, if the child is otherwise with the mother on that day, he will spend between 1.00 pm and 6.00 pm with the father. If the child is otherwise with the father on that day, he will spend between 11.00 am and 5.00 pm with the mother.

(8) Subject to overseas travel in accordance with these Orders or as otherwise agreed, the child will live with the father from 3.00 pm Good Friday to 2.00 pm on Easter Sunday in odd numbered years and with the mother during that period in even numbered years.

(9) Subject to overseas travel in accordance with these orders or as otherwise agreed, the child will live with:

(a) the mother from 4.00 pm Christmas Eve to 4.00 pm Christmas Day in odd numbered years and from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in even numbered years; and

(b) the father from 4.00 pm Christmas Eve to 4.00 pm Christmas Day in even numbered years and from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in odd numbered years.

Overseas Travel

(10) Each of the parents shall forthwith do all things necessary to obtain an Australian passport for the child and they shall jointly apply to renew his passport no later than nine months prior to its expiry.

(11) The parents shall equally share the cost of obtaining and renewing the child’s Australian passport.

(12) As to the possession of the child’s passport prior to or in between occasions of overseas travel by the child, the mother shall retain the passport from the time of issue and thereafter, the parent who most recently travelled with the child shall retain his passport. The holder of the passport shall provide it to the travelling parent as soon as practicable after he or she receives the copy documents referred to in Order 13(a), (b) and (c).

(13) As to notice required for the child’s overseas travel, unless these Orders otherwise provide or the parties otherwise agree, the travelling parent shall provide the other parent with notice at least 56 days prior to the date of intended departure, including in that notice the proposed dates of travel and planned destinations. Not less than 14 days prior to departure, the travelling parent shall provide the other parent with copies of:

(a) the travel itinerary, including the details of all places at which the child will stay while overseas;

(b) B’s return airline tickets, including booking references; and

(14) Unless the parents otherwise agree in writing:

(a) in 2017 the parents are permitted to take the child overseas during the July school holidays only, and:

(i) in the event that the father notifies the mother by 31 May 2017 that he wishes to travel with the child in those holidays:

(A) the mother shall arrange for the child’s travel for the first half of the holiday, including paying for the child’s travel from Australia;

(B) the mother will deliver the child to the father in City E on the middle day of the holidays or as close to that day as possible and the father shall arrange for the child’s travel for the second half of the holiday, including paying for his travel back to Australia;

(C) the parents will equally share the cost of the child’s travel from City D or another agreed city to City E on the middle day of the holidays;

(D) the father will reimburse the mother for one half of the cost of her return travel to City E to accompany the child, capped at the cost of economy class direct return travel between City D or another agreed city and City E;

(ii) in the event that the father elects not to travel or fails to notify the mother of his intention to travel by 31 May 2017 then the mother is at liberty to travel with the child to Europe for 14 days in the July 2017 school holidays provided she gives the father the notice in accordance with Order 13 above and returns the child to the father not less than 48 hours before the resumption of school;

(b) in 2018 the parents are permitted to travel overseas with the child during one of the shorter school holiday periods being the school holiday period nominated by the mother in writing to the father by the end of January 2018. The travel will be on the following basis:

(i) if the father notifies the mother within 30 days after her nomination of the holiday period of his intention to travel with the child for that period, he is permitted to travel with the child to Europe and:

(A) B will spend the first half of the period with the father and

the second half with the mother.

(B) the father will deliver the child to the mother in City D on the middle day of the holidays or close to it, and the mother shall arrange for the child’s travel for the second half of the holiday, including paying for his return flight to Australia;

(C) the parents will share the cost of the child’s travel from City E or an equivalent city to City D on the middle day of the holidays and of the father’s return travel to City D from City E or an equivalent city to accompany the child;

(ii) in the event that the father elects not to travel or fails to notify the mother of his intention to travel within 30 days prior to the commencement of the holiday period, the mother shall be at liberty to travel to Europe with the child for 14 days provided that she gives the father seven days’ notice after the father’s election or failure to notify and returns the child to the father not less than 48 hours before the resumption of school;

(iii) in the event that the father elects to travel but the mother does not elect to travel in that same holiday period, or fails to notify the father of her intention to travel within seven days after the father’s notification, the father shall be at liberty to travel to Europe with the child for 14 days in that holiday period, provided that he returns the child to the mother not less than 48 hours before the resumption of school;

(c) in 2019 and each alternate year thereafter, the mother is permitted to remove the child from Australia within any school holiday period, provided:

(i) she gives the father notice in accordance with Order 13 above;

(ii) the period nominated does not fall over the Christmas public holidays except with the father’s written consent; and

(iii) she returns the child to the father not less than 48 hours before the resumption of school.

(d) in 2020 and each alternate year thereafter, the father is permitted to remove the child from Australia within any school holiday period provided:

(i) he gives the mother notice in accordance with Order 13 above;

(ii) the period nominated does not fall over the Christmas public

holidays except with the mother’s written consent; and

(iii) he returns the child to the mother not less than 48 hours before

the resumption of school.

(e) from 2019, in any year that the child travels overseas with one of the parents, the other parent is at liberty to travel overseas with the child for not more than seven days during a period of that parent’s holiday time on the basis that the travelling parent gives the other parent notice in accordance with Order 13 above.

Miscellaneous Parenting Orders

(15) By consent, each of the parents shall facilitate the child’s attendance and participation in his existing extra-curricular activities, being language school, cricket and soccer together with any additional activities that are mutually agreed between them.

(16) By consent, each of the parents is restrained from talking about the other parent in the child’s presence or hearing in a rude, nasty, unpleasant or disrespectful way.

(17) By consent, when facilitating changeovers or any other event between the parents where the child is present, the parents shall ensure that they shall greet each other and otherwise act in a polite and respectful manner.

(18) Each parent shall keep the other informed of his or her current telephone number, email address and residential address and in the event of a change in one of more of those details shall notify the other parent of the change as soon as practicable but in any event, no later than 48 hours after the change has occurred.

(19) Each of the parents is restrained from enrolling the child in any new extra- curricular activity which will or could require the child’s attendance during his time with the other parent, without the written consent of the other parent.

(20) Each of the parents shall inform the other as soon as practicable of any medical emergency affecting the child.

(21) Each of the parents hereby authorises any health care professional who has treated the child or who treats him in the future to communicate with the other parent in respect of that treatment. The Court notes that each of the parents is at liberty to obtain, at their own expense, any information they may request from those professionals.

(22) Each of the parents hereby authorises any school attended by the child to provide at the cost of the respective parents, copies of all school reports, photographs, orders, forms, invitations and correspondence to both parents. In the event that a school does not provide copies of that material to a parent, the parent who receives the material shall provide a copy of it to the other parent within three days of being requested to do so.

(23) The parents shall advise each other of any birthday parties and school functions in which the child is involved as soon as practicable and shall ensure, where the parent considers it appropriate, that the child shall attend at those commitments when he is in his or her care.

(24) Unless the parties otherwise agree in writing, during any period when the child is away from one parent for more than two days, the other parent shall ensure that there is telephone, Skype or other personal electronic communication between the child and the other parent between 6.00 pm and 7.30 pm on every second day.

(25) Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) (“the Act”), 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.

Property Settlement Orders

(26) Within 42 days after the date of these Orders or within such further time as the parties may agree in writing, the father shall pay to the solicitor for the mother the sum of $696,413.

(27) In the event that the father fails or neglects to comply with Order 26, he shall forthwith do all things and sign all documents necessary to cause the property at F Street, Suburb G in the State of New South Wales being the property described in title reference … (“the Suburb G property”) to be sold and for that purpose, to be listed for sale by an agreed agent and at an agreed price.

(28) In the event that Order 27 applies:

(a)

if the parties are unable to agree on the agent or sale price, the parties shall refer that disagreement to the nominee of the President of the Real Estate Institute of New South Wales who will act an as expert and whose decision shall be binding on the parties.

(b)

pending the sale the father is responsible for the payment of all outgoings, the maintenance of building insurance to the market value and the maintenance of the Suburb G property in good and tenantable repair and shall indemnify the mother and keep her indemnified in respect of any loss arising from a failure to comply with those obligations.

(c)

upon settlement of the sale of the Suburb G property the father shall irrevocably authorise and direct the agent and any solicitor acting on the sale to disburse the proceeds of sale in the following order of priority:

(i) in payment of the agent’s costs of sale;

(ii) in payment of legal fees incurred for the purposes of the sale;

(iii) in payment of any adjustments of rates, other utilities and taxes;

(iv) in payment to the solicitor for the mother the sum of $696,413; and

(v) in payment of any balance to the father.

(29)

The Court notes that the father is a director and shareholder of the company H Limited (“HL”) which owns three parcels of land in Country I (“the Country I properties”).

(30)

Within one month after the date of these Orders the father shall do all acts and things and sign all necessary documents to sell or transfer the Country I properties. He shall cause the proceeds of that sale or transfer to be paid in the following order of priority:

(a)

in payment of the costs of sale;

(b)

in payment to the mother of 37.5 per cent of the balance of the proceeds; and

(c)

in payment of the remaining balance to the father.

(31)

For the purposes of Order 30:

(a)

the father is restrained from doing anything to dispose of or encumber his shareholding in HL or his interest or the interest of HL in the Country I properties other than pursuant to these Orders;

(b)

the father shall provide to the mother monthly progress reports as to his efforts to sell or transfer the Country I properties, including the details and particulars of the relevant stages of sale or transfer;

(c)

pending the sale or transfer of each of the Country I properties pursuant to these Orders, the father shall pay any holding costs (such as council rates) and shall be reimbursed for such payments that arise after the date of these Orders, from the sale or transfer proceeds prior to the payment to the mother pursuant to Order 30(b) above.

(32)

Except as otherwise provided herein, the mother shall retain, to the exclusion of

the father:

(a)

all furniture, jewellery and other chattels currently in her possession custody or control;

(b)

the Motor vehicle 1, registration number …, registered in her name;

(c)

any funds standing to her credit in any Bank, Credit Union or Building Society account;

(d)

any shares in any public or private company;

(e)

any superannuation fund in which she has an entitlement; and

(f)

all and any leave and long service, or any other employment benefits or entitlements.

(33)

Except as otherwise provided herein, the father shall retain, to the exclusion of

the mother:

(a)

all furniture, jewellery and other chattels currently in his possession custody or control;

(b)

the Motor vehicle 2, registration number …, registered in his name;

(c)

any funds standing to his credit in any Bank, Credit Union or Building Society account;

(d)

his interest in Sellen Pty Ltd;

(e)

any shares in any public or private company;

(f)

any superannuation fund in which he has an entitlement;

(g)

all and any leave and long service, or any other employment benefits or entitlements; and

(h)

all of his right, title and interest in the Suburb G property.

(34) Otherwise the mother and the father shall each be solely entitled to the exclusion of the other, to all property and resources in the possession of that party, being property and resources that were identified for the purposes of these proceedings but which have not been otherwise referred to in these Orders.

(35)

By consent, leave is granted to C Lawyers to intervene in the proceedings.

(36) By consent, prior to disbursement to the wife of any moneys paid to her solicitors pursuant to Order 26 or Order 28(iv) herein, as the case may be, the sum of $61,241 be paid from those moneys into a Controlled Moneys Account established by the wife’s solicitors and the wife and the wife’s solicitors are restrained from disbursing or otherwise dealing with those moneys pending an assessment of costs between the wife and the intervenor and thereafter, other to give effect to that assessment.

(37)

The order for interim spousal maintenance which was last amended on 29 June

2015 is discharged as at the date of these Orders.

(38)

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 or implementation of these Orders.

(39)

In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, where it is otherwise appropriate, the Registrars of this Court at Sydney are appointed pursuant to s 106B of the Act to execute such deed, document or instrument in the name of that party and to do all acts and things to give validity and operation to the deed, document or instrument upon the Registrar being provided with evidence of such refusal or neglect, by way of affidavit.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.