Spier and Spier - [2012] FMCAfam 65

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SPIER & SPIER

[2012] FMCAfam 65

FAMILY LAW – Parenting – property – child maintenance – undefended final hearing – no appearance by applicant husband – husband now resident in United Arab Emirates.

Family Law Act 1975, ss.4, 55A, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65DAA, 65DA, 66B, 66C, 66E, 66F, 66G, 66H, 66J, 66K, 66L, 66P, 66R, 69E, 75, 79, 106A.

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Federal Magistrates Court Rules 2001, reg.9.03

In the Marriage ofHickey (2003) 30 Fam LR 355; (2003) FLC 93-143
In the Marriage of Pierce (1998) 24 Fam LR 377; (1998) FLC 92-844
Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103

Applicant:

MR SPIER

Respondent:

MS SPIER

File Number:

SYC 2781 of 2010

Judgment of:

Monahan FM

Hearing date:

17 October 2011

Date of Last Submission:

17 October 2011

Delivered at:

Sydney

Delivered on:

14 February 2012

REPRESENTATION

Counsel for the Applicant:

Not applicable

Solicitors for the Applicant:

Self-represented litigant

Counsel for the Respondent:

Ms Bridger

Solicitors for the Respondent:

Jo-Anna F S Moy, Solicitor

ORDERS

Property

Pursuant to ss.79 and 66P of the Family Law Act 1975 (Cth) (“the Act”), MR SPIER (“the husband”) do all acts and things and execute all documents as may be necessary to transfer to MS SPIER (“the wife”) all of his right, title and interest in the property known as and situated at Property M, [M], NSW, being the whole of the land comprised in Folio Identifier [omitted] (“the former matrimonial home”) within eight (8) weeks of the date of these Orders.
Simultaneously with the transfer referred to in paragraph one (1) herein, the wife do all acts and things and execute all documents necessary to indemnify the husband in respect of the mortgage secured over the former matrimonial home and all taxes and rates levied against it.
Otherwise than as provided for in these Orders, each party be solely entitled, to the exclusion of the other, to all property (including choses-in-action) in the possession and control of such party as at the date of these Orders (the furniture, personal possessions and like chattels in the former matrimonial home being deemed to be in the possession of the wife) and each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.

Parenting

The wife have sole parental responsibility for the long-term care, welfare and development of [X], born [in] 1999, [Y], born [in] 2001, and [Z], born [in] 2006 (“the children”).
The children live with the wife.
The children spend time with the husband when he is in Australia as follows:
(a)In weeks one (1) and two (2), for three (3) hours a day on four (4) days during that fortnight; and
(b)In weeks three (3) and four (4) overnight on two (2) days during that fortnight.
The wife facilitate the children communicating with the husband by telephone or Skype on Fridays at 7:30pm.
The…

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 Spier and Spier

Details

AGLC: Spier and Spier [2012] FMCAfam 65
Case: [2012] FMCAfam 65
Decision Date: 14 February 2012

CaseChat Overview and Summary

Spier and Spier was a family law matter heard by the Family Court of Australia. The parties were MR SPIER (the husband) and MS SPIER (the wife). The primary dispute related to the division of property and arrangements for the care and welfare of the couple's three children. The court was tasked with determining the property settlement and parenting arrangements for the children post-separation.

The central legal issues before the court included the equitable distribution of the former matrimonial home and the allocation of parental responsibility for the children. The court had to consider the relevant statutory provisions under the Family Law Act 1975, including sections 79, 66P, 66R, 65DA(2), and 62B, in addition to the principles of child welfare and the best interests of the children.

The court decided that the former matrimonial home should be transferred entirely to the wife, with the husband indemnifying her for the mortgage and associated costs. The wife was granted sole parental responsibility for the children, with specific visitation arrangements set for the husband. These arrangements included scheduled visits and communication facilitated by the wife. Additionally, the court ordered that 25% of the net value of the former matrimonial home be paid to the wife as lump sum child maintenance. The court also appointed a Registrar or Deputy Registrar to enforce compliance with the orders if either party failed to meet their obligations.

The final orders mandated that the husband transfer his interest in the former matrimonial home to the wife, with provisions for indemnification and child maintenance. The wife was granted sole parental responsibility for the children, with detailed visitation and communication schedules. Any non-compliance with these orders could be enforced by the appointed Registrar or Deputy Registrar.

Orders

Orders of the court

Property

Pursuant to ss.79 and 66P of the Family Law Act 1975 (Cth) (“the Act”), MR SPIER (“the husband”) do all acts and things and execute all documents as may be necessary to transfer to MS SPIER (“the wife”) all of his right, title and interest in the property known as and situated at Property M, [M], NSW, being the whole of the land comprised in Folio Identifier [omitted] (“the former matrimonial home”) within eight (8) weeks of the date of these Orders.

Simultaneously with the transfer referred to in paragraph one (1) herein, the wife do all acts and things and execute all documents necessary to indemnify the husband in respect of the mortgage secured over the former matrimonial home and all taxes and rates levied against it.

Otherwise than as provided for in these Orders, each party be solely entitled, to the exclusion of the other, to all property (including choses-in-action) in the possession and control of such party as at the date of these Orders (the furniture, personal possessions and like chattels in the former matrimonial home being deemed to be in the possession of the wife) and each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.

Parenting

The wife have sole parental responsibility for the long-term care, welfare and development of [X], born [in] 1999, [Y], born [in] 2001, and [Z], born [in] 2006 (“the children”).

The children live with the wife.

The children spend time with the husband when he is in Australia as follows:

(a) In weeks one (1) and two (2), for three (3) hours a day on four (4) days during that fortnight; and

(b) In weeks three (3) and four (4) overnight on two (2) days during that fortnight.

The wife facilitate the children communicating with the husband by telephone or Skype on Fridays at 7:30pm.

The husband sign passport applications for the children upon request by the wife.

The wife notify the husband of any medical or other emergency affecting the children as soon as practicable.

10.

The wife forward copies of the children’s school reports and any achievement awards to the husband by email sent to his last known email address.

11.

In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, then, pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.

12.

Subject to paragraph 13 herein, all extant applications be otherwise dismissed.

AND THE COURT DIRECTS THAT:

13.

The wife cause a copy of the orders made today to be forwarded to the husband at his last known email or residential address.

AND THE COURT NOTES THAT:

(A) These Orders were made following an undefended Final Hearing on 17 October 2011.

(B) Pursuant to s.66R of the Act, 25% of the net value of the husband’s right, title and interest in the former matrimonial home which is to be transferred to the wife under paragraph one (1) herein is to be taken as being paid to the wife by way of lump sum child maintenance, with the remainder of the net value of the husband’s interests being transferred to the wife by way of property settlement.

(C) Pursuant to ss.65DA(2) and 62B of 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 are set out in Annexure A and those particulars are included in these orders.

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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