Simiko & Kellidis (No 2) - [2022] FedCFamC2F 982

Federal Circuit and Family Court of Australia
(DIVISION 2)
Simiko & Kellidis (No 2) [2022] FedCFamC2F 982

File number(s): CAC 1879 of 2019

Judgment of: JUDGE MANSFIELD

Date of judgment: 28 July 2022

Catchwords:
FAMILY LAW – PARENTING – Mother to have sole parental responsibility – Father demonstrates rigid views and lacks insight into effects on children of his uncompromising attitudes and behaviour – How to best promote meaningful relationship between children and the father – Eldest child to spend time with the father in accordance with her wishes – Reduction in alternate weekend time – Maintenance of mid-week time against ICL’s and mother’s proposed orders.

FAMILY LAW – CHILD SUPPORT – Identifying distinction between departure orders under Part 7 Division 4 of the Child Support (Assessment) Act 1989 (Cth) and orders under Division 5 for provision of child support otherwise than in the form of periodic amounts – Section 124 as a source of power in absence of an order under section 117 – Lightfoot v Hampson (1996) FLC 92-663 followed – Ivanovic v Ivanovic (1996) FLC 92-689 considered – Test for ‘special circumstances’ in section 125(2) met with respect to school fees but not for orthodontic expenses - Gyselman and Gyselman (1992) FLC 92-279 followed – Order for husband to provide security for payment of child support - Malcher & Malcher [2016] FamCA 1063 followed.

FAMILY LAW – PROPERTY – Effect of husband’s failure to comply with procedural orders – Effect of husband’s non-compliance with disclosure obligations – Weir and Weir (1993) FLC 92-338 applied – Parties own contributions pale into insignificance compared to amounts advanced by the wife’s father and the husband’s inheritance from his father – necessary to adopt asset-by-asset approach to achieve a just and equitable result.

Legislation:
Child Support (Assessment) Act 1989 (Cth) ss 4, 99, 117, 121, 122, 123(1)(a), 123(1)(b), 124, 125, 141

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 60CC(2) 60CC(2)(a), 60CC(2)(b), 60CC(3), 61B, 61C, 61D, 61DA, 61DAC, 61DB, 65D, 65DAA, 65DAB, 65DAC, 75, 79, 102NA, 102NB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r.1.33(2)(c), r.5.01

Cases cited:
Babett & Falconer (2015) FLC 98-067

Dickons & Dickons [2012] FamCAFC 154

Dovgan & Dovgan [2021] FamCA 306

G & C [2006] FamCA 994

Gyselman and Gyselman (1992) FLC 92-279

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143

Ivanovic v Ivanovic (1996) FLC 92-689

Jurchenko & Foster (2014) FLC 93-598

Lightfoot v Hampson (1996) FLC 92-663

Loddington & Derringford (No 2) [2008] FamCA 925

Malcher & Malcher [2016] FamCA 1063

McCall and Clark (2009) FLC 93-405

Norbis v Norbis [1986] HCA 17

Perrin & Perrin (No 2) [2018] FamCAFC 122

Savery and Savery (1990) FLC 92-131

Stanford v Stanford (2012) 247 CLR 108

Weir and Weir (1993) FLC 92-338

Division: Division 2 Family Law

Number of paragraphs: 203

Date of last submission/s: 13 May 2022

Date of hearing: 4-6 May 2022

Place: Canberra

Counsel for the Applicant: Ms Curran

Solicitor for the Respondent: Litigant in person

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 Simiko & Kellidis (No 2)

Details

AGLC: Simiko & Kellidis (No 2) [2022] FedCFamC2F 982
Case: [2022] FedCFamC2F 982
Decision Date

CaseChat Overview and Summary

This case involved a parenting dispute between Ms Simiko (the mother) and Mr Kellidis (the father) over their three children. The matter proceeded to a final hearing before Judge Mansfield. The court considered the parenting, child support, and property issues, ultimately making orders in favour of the mother on all three fronts. The court found that the mother should have sole parental responsibility, as the father's rigid views and lack of insight into the effects on the children made it difficult for them to have a meaningful relationship with him. The court also ordered that the mother should receive half of the children's school fees and orthodontic expenses from the father, and that he provide security for the payment of child support. In the property division, the court found that it was just and equitable for the mother to retain her home and for the father to retain his interests in the property he inherited from his father.

Orders