Simpson & Simpson - [2009] FamCA 100

FAMILY COURT OF AUSTRALIA

SIMPSON & SIMPSON

[2009] FamCA 100

FAMILY LAW – CHILDREN – 12 year old child – Attitude of father towards mother

FAMILY LAW – PROPERTY – Major component of net assets derived from husband’s personal injuries award – Discussion of add back of paid legal fees and other issues related to the composition of the net assets – Contributions – Husband’s capacity for work

Family Law Act 1975 (Cth)

APPLICANT:

Ms Simpson

RESPONDENT:

Mr Simpson

FILE NUMBER:

SYC

5094

2007

DATE DELIVERED:

18 February 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

9 & 10 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Watkins

SOLICITOR FOR THE APPLICANT:

CM Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Millar

SOLICITOR FOR THE RESPONDENT:

J.S. Pinto & Co

Orders

The mother is to have sole parental responsibility for the child D born … May 1997 (“the child”).
The mother is to keep the father informed of any major long term decisions taken by her about the child’s upbringing.
The child is to live with his mother and spend time with his father as follows:
(a)during school terms, each alternate week from Thursday after school to before school Monday morning or Tuesday if Monday is a public holiday;
(b)during school holidays for one half of each school holiday period as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years;
(c)on Father’s Day, the child’s birthday, and the father’s birthday as agreed and if not agreed for the whole of Father’s Day from 9am to 5pm and for two (2) hours if the other occasions fall on a school day or five (5) hours if they do not.
Both parents are restrained and an injunction is granted restraining them from removing the child from the Commonwealth of Australia without the specific agreement in writing of the other parent or order of the Court and the passport for the child is not to be provided to either parent unless and until there is written agreement about his travel or order of the Court.
On or before one (1) month from this date the husband pay to the wife the sum of $300,000.
Upon payment of the sum referred to in order 5 the wife is to do all things and sign all documents necessary to transfer to the husband her right title and interests in
(i)the property at M being Folio Identifier … subject to the mortgage secured on the property; and
(ii)the property owned by the parties in Portugal.
Unless expressly mentioned in these orders, each party is entitled to retain to the exclusion of the other all other property presently in the possession or ownership of that party.

IT IS NOTED that publication of this judgment under the pseudonym Simpson & Simpson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC…

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 Simpson & Simpson

Details

AGLC: Simpson & Simpson [2009] FamCA 100
Case: [2009] FamCA 100
Decision Date: 18 February 2009

CaseChat Overview and Summary

In *Simpson & Simpson*, heard by Moore J, the Family Court of Australia considered a dispute between a mother and father concerning their twelve-year-old child and the division of their property. The case involved significant assets, with a major component derived from the husband's personal injury award, and raised questions about the composition of the net assets and the husband's capacity for work.

The court was required to determine issues relating to parental responsibility and the child's living arrangements, including the extent of time the child would spend with each parent. Additionally, the court had to address the division of the parties' property, specifically considering whether to "add back" certain legal fees and other expenses to the net asset pool, and how to account for the husband's contributions, including his capacity for work.

Moore J ordered that the mother have sole parental responsibility for the child, with the child to live with her. The father was granted specific time with the child during school terms and holidays, with detailed provisions for special occasions. The court also imposed an injunction restraining either parent from removing the child from Australia without written agreement or a court order, and stipulated that the child's passport was not to be provided to either parent without such agreement or order. In relation to property, the husband was ordered to pay the wife $300,000, upon which the wife was to transfer her interests in two properties to the husband. Each party was otherwise entitled to retain the property in their possession.

Orders

Orders of the court

The mother is to have sole parental responsibility for the child D born … May 1997 (“the child”).

The mother is to keep the father informed of any major long term decisions taken by her about the child’s upbringing.

The child is to live with his mother and spend time with his father as follows:

(a) during school terms, each alternate week from Thursday after school to before school Monday morning or Tuesday if Monday is a public holiday;

(b) during school holidays for one half of each school holiday period as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years;

(c) on Father’s Day, the child’s birthday, and the father’s birthday as agreed and if not agreed for the whole of Father’s Day from 9am to 5pm and for two (2) hours if the other occasions fall on a school day or five (5) hours if they do not.

Both parents are restrained and an injunction is granted restraining them from removing the child from the Commonwealth of Australia without the specific agreement in writing of the other parent or order of the Court and the passport for the child is not to be provided to either parent unless and until there is written agreement about his travel or order of the Court.

On or before one (1) month from this date the husband pay to the wife the sum of $300,000.

Upon payment of the sum referred to in order 5 the wife is to do all things and sign all documents necessary to transfer to the husband her right title and interests in

(i) the property at M being Folio Identifier … subject to the mortgage secured on the property; and

(ii) the property owned by the parties in Portugal.

Unless expressly mentioned in these orders, each party is entitled to retain to the exclusion of the other all other property presently in the possession or ownership of that party.

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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