FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIERRA & SIERRA | [2017] FCCA 596 |
| Catchwords: FAMILY LAW – PROPERTY – 14 year relationship, modest pool – dispute about whether the parties owe a debt to the paternal grandmother – where contributions favour the husband and s.75(2) matters favour the wife – overall division of the non-superannuation assets in favour of the wife and the superannuation assets in favour of the husband. CHILD SUPPORT – Application by husband for recovery of child support paid for a child determined not to be his biological child – where the husband raised the child from birth and only demanded a DNA test 17 months after separation – application dismissed. |
| Legislation: Child Support (Assessment) Act ss.107,143 |
| Cases cited: NHC & RCH (2004)FLC93-204 |
| Applicant: | MR SIERRA |
| Respondent: | MS SIERRA |
| File Number: | NCC 1449 of 2014 |
| Judgment of: | Judge Terry |
| Hearing dates: | 12, 13, 25 and 26 November 2015 and 21 and 22 July 2016 |
| Date of Last Submission: | 26 August 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 5 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gruzman |
| Solicitors for the Applicant: | Mark Evans Solicitor |
| Counsel for the Respondent: | Mr Rugendyke |
| Solicitors for the Respondent: | Baker Love Lawyers |
ORDERS
Parenting
BY CONSENT:
The parties shall have equal shared parental responsibility for the children W born (omitted) 2003, X born (omitted) 2005 and Y born (omitted) 2008 (collectively referred to as “the children”).
Z born (omitted) 2000 shall spend time with the husband in accordance with her wishes.
BY THE COURT
The children shall live with the mother.
The children shall spend time with the father as follows:
(a)During school terms:
(i)In week 1 from the conclusion of school Wednesday until the commencement of school on the following Monday morning;
(ii)In week 2 from the conclusion of school Wednesday until the commencement of school on Thursday.
(b)For one half of all school holidays being the first half in each year where the first day of the holiday period falls in an odd-numbered year and the second half in each year where the first day of the holiday period falls in an even-numbered year.
(c)If the children are not otherwise spending time with the father on Father’s Day, from…
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- Sierra and Sierra [2017] FCCA 596
- Case
- [2017] FCCA 596
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were: (1) the parenting arrangements for the children, specifically whether the existing 8/6 shared care arrangement should continue or if primary residence should be granted to the husband; (2) the division of the parties' property, including whether a debt to the paternal grandmother was owed; and (3) the husband's claim for reimbursement of child support payments. The court was required to consider the best interests of the children, including their views, their relationships with each parent, and any concerns raised about parental conduct.
In relation to parenting, the court noted concerns about the wife's alleged alcohol issues and new relationships, but also expressed concern about the husband's attitude towards the wife and the potential for undermining the children's relationship with her if residence changed. The court found that while the children expressed some desire to see their father more, the evidence did not support a genuine preference for a change in residence, particularly for the younger children who expressed satisfaction with the current arrangement. The court ultimately determined that the existing 8/6 shared care arrangement should continue, with the children living with the mother and spending significant time with the father. For property, the court found that contributions favoured the husband and section 75(2) matters favoured the wife, leading to an overall division of non-superannuation assets in favour of the wife and superannuation assets in favour of the husband. The husband's child support application was dismissed, as he had raised the child from birth and delayed seeking a DNA test for 17 months post-separation.
The court ordered equal shared parental responsibility for the children, with the children to live with the mother and spend time with the father according to a detailed schedule. The wife was ordered to pay the husband a sum of $123,163.25 and refinance a mortgage on their property into her sole name, with provisions for the husband to refinance if the wife failed to comply. The proceeds of sale of the property were to be divided 45% to the husband and 55% to the wife. The wife was also entitled to a specific amount from the husband's superannuation. Various personal items were allocated to each party, with the wife having discretion over the contents of certain items. The husband's application for repayment of child support was dismissed.
Orders
Orders of the court
Parenting
BY CONSENT:
1.
The parties shall have equal shared parental responsibility for the children W born (omitted) 2003, X born (omitted) 2005 and Y born (omitted) 2008 (collectively referred to as “the children”).
2.
Z born (omitted) 2000 shall spend time with the husband in accordance with her wishes.
BY THE COURT
3.
The children shall live with the mother.
4.
The children shall spend time with the father as follows:
(a) During school terms:
(i) In week 1 from the conclusion of school Wednesday until the commencement of school on the following Monday morning;
(ii) In week 2 from the conclusion of school Wednesday until the commencement of school on Thursday.
(b) For one half of all school holidays being the first half in each year where the first day of the holiday period falls in an odd-numbered year and the second half in each year where the first day of the holiday period falls in an even-numbered year.
(c) If the children are not otherwise spending time with the father on Father’s Day, from 5.00pm on the day preceding Father’s Day until 5.00pm on Father’s Day.
(d) If the children are spending time with the father on Mother’s Day, then the father’s spending time shall be suspended from 5.00pm on the day preceding Mother’s Day until 5.00pm on Mother’s Day.
(e) On each of the children’s birthdays, the children shall spend time with the parent with whom they are not otherwise living or spending time pursuant to these orders from the conclusion of school or 4.00pm as applicable until 8.00pm;
(f) On each of the parent’s birthdays, the children shall spend time with the parent with whom they are not otherwise living or spending time pursuant to these orders from the conclusion of school or 4.00pm as applicable until 8.00pm.
5.
The husband shall collect the children from the children’s schools or from the wife’s home at the commencement of his time and the wife shall, if the children are not at school on the day in question, collect the children from the husband’s home at the conclusion of the time.
6.
Each party is at liberty to telephone the children at all reasonable times and each party will do such acts and things that are necessary to facilitate such communication including making a telephone available to the children to receive such telephone calls at all reasonable times.
7.
Each party shall notify the other party by way of SMS text message of any change in their landline telephone number and/or mobile telephone number within seven (7) days of any change to any such number.
8.
Each party shall promptly notify the other if:
(a) Any of the children becoming seriously ill;
(b) Any of the children becoming hospitalised; or
(c) Any of the children are involved in an accident requiring attendance at hospital.
9.
Each party may obtain from the children’s schools copies of newsletters, reports, order forms for school photographs and information normally provided to parents and each party may attend events at the school normally attended by parents.
Property
10.
Within 60 days of the date hereof the wife shall:
a) Pay to the husband the sum of $123,163.25;
b) Refinance into her sole name the loan from (omitted) Bank secured by mortgage over Property M (“the property”).
11.
Contemporaneously with the wife complying with Order (10):
a) The husband shall sign all documents required to transfer to the wife at the expense of the wife the whole of his right title and interest in the property.
b) The wife shall indemnify the husband and keep him indemnified from liability for the said mortgage and for all rates and outgoings owing in respect of the property.
12.
If the wife fails to comply with Order (10) the husband shall within a further 60 days
(a) Pay to the wife the sum of $150,686.75;
(b) Refinance into his sole name the loan from (omitted) Bank secured by mortgage over Property M (“the property”).
13.
Contemporaneously with the respondent complying with Order (1):
(a) The wife shall sign all documents required to transfer to the wife at the expenses of the husband the whole of her right title and interest in the property.
(b) The husband shall indemnify the wife and keep her indemnified from liability for the said mortgage and for all rates and outgoings owing in respect of the property.
14.
If the wife fails to comply with Order (1) and the husband fails to comply with Order (4) then the parties shall do all acts and things required to sell the Property M property and for that purpose:
(a) The property shall be listed for sale by private treaty with a real estate agent agreed between the parties and failing agreement as nominated by the president of the Real Estate Institute of NSW.
(b) The listing price of the property shall be the amount agreed between the parties and failing agreement be as nominated by the agent.
(c) The sale price of the property shall be such amount as agreed between the parties and failing agreement as nominated by the agent.
(d) The parties shall co-operate in every way with the agent in relation to the marketing of the property for sale including making the key readily available and allowing inspection of the property at all times reasonably requested by the agent.
(e) Upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
15.
The proceeds of sale shall be utilised:
(a) To pay the costs, commissions and expenses of sale including any rates adjustments.
(b) To pay the (omitted) Bank the amount owing pursuant to the mortgage registered on the property.
(c) To pay the balance as to 45% to the husband and 55% to the wife.
16.
Pursuant to Section 90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable in respect of the interest of the husband in the (omitted) Superannuation Fund (“the Fund”) under Member No. (omitted), the wife shall be entitled to a base amount of $112,479.80 and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
17.
Having being afforded procedural fairness in relation to the making of this Order, the Order binds the Trustee of the Fund, namely (omitted) Superannuation (omitted) (“the Trustee”).
18.
Order (16) shall have effect from the operative time.
19.
The operative time for the purposes of Order (16) of these Orders is four (4) business days after the date of service of these orders upon the Trustee.
20.
Subject to Order 21 the wife shall within 28 days make available for collection by the husband the following items:
(a) (omitted) mulcher 4 stroke mower (silver)
(b) (omitted) 2 stroke lawn trimmer
(c) (omitted) 2 stroke blower vac
(d) Black power planer
(e) 1 ladder
(f) (omitted) router bench including ½ drive router and bit set case
(g) (omitted) moulding nail gun
(h) Air Works PIN nail gun
(i) (omitted) amplifier
(j) (omitted) CD Player
(k) (omitted) Tuner
(l) Other tools and hardware at the absolute discretion of the wife
(m) Excalibur sword
(n) Pine Tall drawer chest of drawers and (at the absolute discretion of the wife) contents
(o) 3 Framed (omitted) cow prints
(p) Slat door storage cupboard in store room and (at the absolute discretion of the wife) contents
(q) Vinyl records and turntables
(r) Boxing Bag
(s) Some of the fishing gear at the absolute discretion of the wife
(t) Red toolbox pastry cooking tools
(u) Sunbeam juice extractor
(v) Some of the pastry cooking accessories, stainless steel Barista fry pans and miscellaneous kitchen appliances and accessories at the absolute discretion of the wife
(w) Pasta machine
(x) Some of the CD collection at the absolute discretion of the wife
21.
The wife shall use her best endeavours to provide the items in Order (20) to the husband but the wife’s determination as to whether the items are still in her possession is final and the husband shall accept the items in the condition in which they are delivered to him.
22.
The wife is declared the owner to the exclusion of the husband of the Jayco caravan.
23.
The husband is declared the owner to the exclusion of the wife of the (omitted) Football jerseys.
24.
Each party is otherwise declared the owner of all assets in their possession or under their control.
25.
In the event that either party refuses or neglects or is unable to execute any instrument or document being an instrument or documents the execution of which is provided for in these orders or is necessary to put into effect the provisions of these orders then at the request of the other party and Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to Section 106A to execute any such instrument or document in the name of the party refusing or neglecting or being unable to so execute the instrument or document.
Child Support
26.
The husband’s application for repayment of child support paid for the child Z is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The first of the additional considerations in s. 60CC (3) is any views expressed by the children and the weight to be given to those views. In her March 2015 report the family consultant noted that the children had been interviewed twice previously at child inclusive child dispute conferences. She said that all four children told her that their main concern was the parental conflict. W told the family consultant that the current 8/6 arrangement was ok but he felt that an extra night with the father would be an option because it was fair. The husband alleged that in 2016 that W began telling him that he wanted to live with him. He contacted the school and the school counsellor spoke to W and reported back to the husband. The counsellor saw W on 13 May 2016, 20 May 2016 and 16 June 2016. In the 13 May 2016 meeting W did not express a view about his living arrangements. On 20 May 2016 he said that he would like to see his Dad more often and would like his Mum to stop telling lies about his dad. On 16 June 2016 he said that his parents had recently been to court and that he had called his mother while at his Dad’s to tell her he wanted to live with his Dad and repeated that his mother often told lies about his Dad hitting her. I cannot place weight on this evidence as a genuine expression of a preference by W about where he would like to live. It has all the hallmarks of utterances by a child caught in conflict and struggling with divided loyalties. X told the family consultant that she liked the 8/6 arrangement and wanted it to stay that way. Y said that he liked the current arrangement because it was even. The wife said that Y sometimes did not want to go to the husband’s place and would prefer to stay with her but I cannot place any weight on this. I must consider the nature of the children’s relationship with each of their parents and any other person including a grandparent of the children. The family consultant observed a good relationship between the children and each parent. She said as follows:The younger three children were observed with both parents and with Z when with the mother. It is common ground that they have positive relationships with both parents and with each other and this was consistent with the observation sessions where they appeared to present in a warm, relaxed and comfortable manner with all family members.[3][3] Family Report paragraph 46 There was nothing to suggest that anything had changed since the report was released. The husband alleged that Z and W had issues which had led to Z punching W. I cannot make a finding that there are issues between these siblings which are relevant to the configuration of their time with the parents. The husband’s solicitor submitted that it was concerning that the court had no evidence about how the children got on with Mr C, the mother’s most recent partner or with Mr M her previous partner. This is a deficiency in the evidence but it is noteworthy that the husband, who levied every criticism he possibly could at the wife, did not suggest that the children had complained to him about either man.