SMIRNOV & SMIRNOV - [2010] FMCAfam 1358

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMIRNOV & SMIRNOV

[2010] FMCAfam 1358

FAMILY LAW – Parenting – whether equal shared parental responsibility – not in their best interests to split twins living arrangement.

FAMILY LAW – Property – Husband to retain family home – in best interests of children to continue to live in family home – whether inheritance part of the pool – just and equitable.

Family Law Act 1975, ss.60B(1), 60CC(3), 61DA(2), 65DAA, 75(2), 79(4)

Bonnici v Bonnici (1992) FLC 92-272
Stewart & Stewart [2008] FMCAfam 22

Applicant:

MR SMIRNOV

Respondent:

MS SMIRNOV

File Number:

MLC 9407 of 2009

Judgment of:

Turner FM

Hearing dates:

6 – 9 September; 17 November 2010

Date of Last Submission:

17 November 2010

Delivered at:

Melbourne

Delivered on:

8 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr Ambrose

Solicitors for the Applicant:

Kennedy Guy

Counsel for the Respondent:

Mr Crozier-Durham

Solicitors for the Respondent:

Calleus Le Brun & Burke Solicitors

ORDERS

Parenting Orders

All previous parenting orders are terminated.
The parents have equal shared parental responsibility for the children [W] born [in] 1993, [X] born [in] 1997, [Y] born [in] 2002 and [Z] born [in] 2002.
[W] and [X] (the “older children”) are to live with the husband.
[Y] and [Z] (the “twins”) are to spend equal time with each parent by living with them on a week about basis. They are to live with the wife for the week commencing from after school on Friday 10 December 2010 until before school the following Friday, and alternate weeks thereafter. In non-school weeks the times are from 3.30pm on Friday until 8.30am on the following Friday.
The twins are to live with the husband every second week, between the same times as ordered for the wife.
The children [W] and [X] are to spend time with the wife from 10am to 6pm each second Saturday that the twins are living with her commencing on 10 December 2010.
The twins are to spend time with the wife:
(a)For one half of each school term and summer holiday period, alternating between the first and second half of the holidays in each year; The remainder of the holidays are to be spent with the husband.
(b)From 9am to 6pm on Mother’s Day;
(c)On each child’s birthday at times agreed between the parties, or failing agreement from 9am to 2pm;
(d)On Christmas Day at times agreed between the parties, or failing agreement from 9am to 2pm;
[W] and [X] spend time with the wife as agreed between the parties and failing agreement between 9am to 2pm on the children’s birthdays.
[W] and [X] are to spend time with the wife during holidays as set out in the regime above, or at further times at their option.
All children are to spend time with their parent for three hours on that parent’s birthday, and all other orders are suspended for that time.
Changeovers are to occur at the children’s schools, or on non-school days, at the [omitted] Store,…

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: SMIRNOV & SMIRNOV [2010] FMCAfam 1358
Case: [2010] FMCAfam 1358
Decision Date: 8 December 2010

CaseChat Overview and Summary

The case before the court involved the separation of a married couple, with the wife seeking orders relating to the care of their four children and the division of their property. The husband opposed the wife's claims, and the court was required to decide on the best interests of the children, the allocation of parental responsibility, and the division of the matrimonial property. The court found that the best interests of the children were served by having the older children live with the husband and the twins live with the wife for alternating weeks, with the twins spending equal time with each parent. The court also found that the husband should retain the family home, as it was in the best interests of the children to continue living there, and that the inheritance was part of the property pool to be divided between the parties.

The court considered the evidence and submissions from both parties and made findings on the issues presented. The court found that the wife had a history of mental health issues and had not complied with treatment recommendations, which impacted her ability to care for the children. The court also found that the husband was a loving and supportive parent who provided a stable and nurturing environment for the children. The court considered the children's needs and best interests in making its decisions and found that the proposed parenting arrangements would promote their health, development, and wellbeing.

The court made orders for the termination of all previous parenting orders and for the parents to have equal shared parental responsibility for the children. The court ordered that the older children live with the husband and the twins live with the wife for alternating weeks, with the twins spending equal time with each parent. The court also made orders for the division of the matrimonial property, finding that it was just and equitable to divide the pool 60/40% in favour of the husband. The court ordered the wife to transfer the family home to the husband and for the husband to indemnify the wife against all liability under the mortgage on the property.

The court made additional orders relating to the care and wellbeing of the children, including orders for the parents to attend parenting programs, obey treating professionals, refrain from denigrating each other, and not physically discipline the children. The court also made orders for the payment of child support and for the division of the parties' motor vehicles, household furniture, and chattels. The court found that the proposed orders were in the best interests of the children and just and equitable between the parties.

Orders

Orders of the court

Parenting Orders

All previous parenting orders are terminated.

The parents have equal shared parental responsibility for the children [W] born [in] 1993, [X] born [in] 1997, [Y] born [in] 2002 and [Z] born [in] 2002.

[W] and [X] (the “older children”) are to live with the husband.

[Y] and [Z] (the “twins”) are to spend equal time with each parent by living with them on a week about basis. They are to live with the wife for the week commencing from after school on Friday 10 December 2010 until before school the following Friday, and alternate weeks thereafter. In non-school weeks the times are from 3.30pm on Friday until 8.30am on the following Friday.

The twins are to live with the husband every second week, between the same times as ordered for the wife.

The children [W] and [X] are to spend time with the wife from 10am to 6pm each second Saturday that the twins are living with her commencing on 10 December 2010.

The twins are to spend time with the wife:

(a) For one half of each school term and summer holiday period, alternating between the first and second half of the holidays in each year; The remainder of the holidays are to be spent with the husband.

(b) From 9am to 6pm on Mother’s Day;

(d) On Christmas Day at times agreed between the parties, or failing agreement from 9am to 2pm;

[W] and [X] spend time with the wife as agreed between the parties and failing agreement between 9am to 2pm on the children’s birthdays.

[W] and [X] are to spend time with the wife during holidays as set out in the regime above, or at further times at their option.

10.

All children are to spend time with their parent for three hours on that parent’s birthday, and all other orders are suspended for that time.

11.

Changeovers are to occur at the children’s schools, or on non-school days, at the [omitted] Store, or at an agreed alternative location.

12.

Each parent is to provide the other with their current contact telephone numbers, and inform them of any changes thereto.

13.

The children and the parties are free to communicate with each other at all reasonable times.

14.

The husband and wife are to ensure that the children attend sporting commitments on weekends as required.

15.

The husband and wife are to ensure that the children have lunch to take to school and that the children are punctual in attending and leaving school.

16.

Both parties are restrained from denigrating, or allowing any other person to denigrate, the other party within the hearing of the children.

17.

Both parties are restrained by injunction from physically disciplining the children.

18.

The wife is to comply with treatment recommendations by Dr B or any other of her treating professionals.

19.

The wife is to attend a family support worker at [omitted], and comply with any recommendations thereby.

20.

Each party is to comply with any reasonable recommendation by a school principal or welfare officer, in relation to the children.

21.

Both parties are to attend a Post Separation Parenting Program.

22.

Each parent is to keep the other advised of any injury or illness any of their children suffers while in their care.

23.

Each parent is to keep the other advised of the children’s progress at school.

24.

Each parent is free to attend the children’s school and make enquiries as to their progress.

25.

Both parents are permitted to attend the children’s school and extra curricular functions or events that are normally attended by parents.

26.

The above orders other than those relating to attendance at parenting programs, obeying treating professionals, non-denigration and no physical discipline are subject to variations by a subsequent parenting agreement that may be reached between the parties, in accordance with the Family Law Act 1975 (the “Act”).

Property Orders

27.

The Court orders that the pool be divided 60/40% in favour of the husband.

28.

The wife is to transfer the property at Property H (the “Property H property”) to the husband at his expense contemporaneously with the payment by him to her of $82,025.00., which is to occur on or before 15 January 2011

(a) The Court orders pursuant to s.106A of the Act that should the wife fail to execute the documents necessary to transfer the Property H property to the husband, the Registrar of the Federal Magistrates Court of Australia is appointed to execute those documents.

29.

The husband is to indemnify, and keep indemnified, the wife against all liability under the mortgage on the Property H property and arrange for the mortgage to be refinanced in his sole name.

30.

Whenever an entitlement becomes due under the husbands superannuation, 40% is to be paid to the wife.

31.

The husband is to pay all outstanding and further rates and charges on the Property H property, and keep the wife indemnified against the same.

32.

The parties are to retain the motor vehicles in their possession.

33.

The household furniture and chattels as at separation are to be divided 60/40% in favour of the husband who needs to provide accommodation for five people.

34.

The matters are removed from the list of pending applications.

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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