T and T - [2002] FMCAfam 86

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T & T

[2002] FMCAfam 86

CHILDREN – Residence – cultural issues – overseas orders – status quo.
PROPERTY SETTLEMENT – Contributions – contributions by third party.

Family Law Act1975

Taylor v Taylor (1979) 143 CLR1
Allesch and Maunz (2000) FLC 93-033
B v B: Family Law Reform Act (1997) FLC 92-755
AMS v AIF (1999) FLC 92-852
A v A : Relocation approach (2000) FLC 93-306
In the Marriage of Lee Steere (1985) 10 FamLR 431
In the Marriage of Ferraro (1992) 16FamLR 1;
In the Marriage of Clauson (1995) 18FamLR 693;
In the Marriage of Whiteley (1996) 20FamLR 590 at 593-595
Russell v Russell (1999) (FLC 92-877
In the Marriage of Townsend (1994) 18FamLR 505 at 512;
In the Marriage of Biltoff (1995) 19FamLR 82 at 91-2
Bremner v Bremner (1995) FLC 92-560
Gosper and Gosper (1987) FLC 91-818
Kessey and Kessey (1994) FLC 92-495

Applicant:

A T

Respondent:

R T

File No:

ZP 3101 of 2001

Delivered on:

11 April 2002

Delivered at:

Parramatta

Hearing Date:

11 March 2002

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Watts McCray Lawyers
15^th Floor, 370 Pitt Street
SYDNEY NSW 2000

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Nil

ORDERS

That the husband have the long term and short term responsibility for the care, welfare and development of K T born 5 March 2002 including but not limited to:
(a)the application for a passport for the child or replacement passport for the child to the exclusion of the wife;
(b)the issue of visas to enable the return of the child to Australia;
(c)application for issue of airline tickets or other transport ticket to enable the return of the child to Australia.
That the child reside with the husband.
That the child have such contact with the wife as is agreed between the parties.
That the wife do all acts, sign all documents and pay all moneys to return the child to Australia within 90 days of the date of these orders.
That the wife be restrained from continuing to keep the child out of the Commonwealth of Australia beyond ninety days from the date of these orders.
That the husband shall serve a sealed copy of these orders on the wife within 7 days by forwarding them by international airmail to her address at 8^thStreet, A.
That the time to appeal will be calculated from the day 28 days after the date upon which the posting of these orders in compliance with Order 6 is effected.
That any person from time to time holding or acting in the capacity of a Police Officer of the Commonwealth of Australia or of a State or Territory of the Commonwealth of Australia or any Australian Consulate Official be authorised and directed, with such assistance as he or she or they require and, if necessary, by force recover the child and deliver the child to the husband…

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 T and T

Details

AGLC: T and T [2002] FMCAfam 86
Case: [2002] FMCAfam 86
Decision Date: 11 April 2002

CaseChat Overview and Summary

In the case between T and T, the Federal Magistrates Court was presented with a dispute concerning the care and custody of a child, K T, born on 5 March 2002. The parents, who are now divorced, were in disagreement regarding the child's residency and the allocation of responsibilities for the child's welfare. The husband sought sole responsibility for the care, welfare, and development of the child, as well as exclusive rights to handle the child's travel arrangements back to Australia, while the wife contested these claims. The court was tasked with determining the primary care arrangements for the child, as well as resolving the property settlement between the parties.

The court considered several factors, including the best interests of the child and the respective roles of each parent in the child's life. It was noted that the child had been living in Australia with the husband and that the wife had taken the child to a foreign country without the husband's consent. The court found that it was in the child's best interest to reside with the husband and that the wife should facilitate the child's return to Australia. Additionally, the court addressed the property settlement, determining that the wife should transfer her interest in the family home to the husband in exchange for a monetary payment, and outlining the conditions under which this transfer and payment would occur.

Following its reasoning, the court ordered that the husband would have exclusive responsibility for the care, welfare, and development of the child, including the application for a passport and the issuance of visas and airline tickets for the child's return to Australia. The child was ordered to reside with the husband, with contact between the child and the wife to be agreed upon by the parties. The wife was required to return the child to Australia within 90 days and was prohibited from keeping the child outside Australia beyond this period. Furthermore, the wife was mandated to assist in the return of the child to Australia, and if necessary, law enforcement officials were authorised to recover the child and arrest the wife. The court also addressed the property settlement, requiring the husband to pay the wife a specific amount and for the wife to transfer her interest in the family home to the husband, with provisions for the sale of the home if the payment was not made within the specified timeframe.

In summary, the court's orders granted the husband primary care of the child, required the wife to return the child to Australia, and addressed the property settlement between the parties. The matter was removed from the Pending Cases list, and all other outstanding applications were dismissed.

Orders

Orders of the court

That the husband have the long term and short term responsibility for the care, welfare and development of K T born 5 March 2002 including but not limited to:

(a) the application for a passport for the child or replacement passport for the child to the exclusion of the wife;

(b) the issue of visas to enable the return of the child to Australia;

That the child reside with the husband.

That the child have such contact with the wife as is agreed between the parties.

That the wife do all acts, sign all documents and pay all moneys to return the child to Australia within 90 days of the date of these orders.

That the wife be restrained from continuing to keep the child out of the Commonwealth of Australia beyond ninety days from the date of these orders.

That the husband shall serve a sealed copy of these orders on the wife within 7 days by forwarding them by international airmail to her address at 8th Street, A.

That the time to appeal will be calculated from the day 28 days after the date upon which the posting of these orders in compliance with Order 6 is effected.

That any person from time to time holding or acting in the capacity of a Police Officer of the Commonwealth of Australia or of a State or Territory of the Commonwealth of Australia or any Australian Consulate Official be authorised and directed, with such assistance as he or she or they require and, if necessary, by force recover the child and deliver the child to the husband including to arrest, without warrant, the wife in the event that the wife again removes or takes possession of the child.

That by way of property adjustment:

(a) the husband shall pay to the wife the sum of $9,105.10;

(b) the wife shall sign all documents and do all acts to assign to the husband the whole of her right title and interest in the property 168A S Road, H (the home) which is the whole of the land comprised in folio identifier ; and

(c) that the husband shall pay this amount to the wife within four months of the date of these orders simultaneously with the delivery by the wife to him of a signed transfer in registrable form transferring to the husband the whole of her right title and interest in the home.

10.

That in the event that the husband fails to make the payment to the wife under Order 9 within four months of the date of these orders he shall then forthwith do all acts and things and sign all documents necessary to sell the home for the best price reasonably attainable and to cause the proceeds of such sale to be distributed as follows:

(a) in payment of the costs of and incidental to the sale;

(b) in payment of the amount required to discharge the National Australia Bank Ltd mortgage secured thereon;

(d) in payment of the net balance to the husband.

11.

That interest on the amount due to the wife under Order 9 shall be paid in accordance with the Family Law Rules from the day she delivers to the husband a signed transfer in accordance with Order 9.

12.

That the husband shall be responsible for payment of the principal and interest under the mortgage to the National Australia Bank Ltd and shall indemnify the wife in respect of the mortgage, council rates, water rates and insurance premiums in respect of the home.

13.

That if a party refuses or neglects to execute a document necessary to implement Order 9 or Order 10 within 7 days after the document has been tendered to her or him, the Registrar of the Federal Magistrates Court is appointed to execute on her or his behalf all documents necessary to implement the orders on proof by affidavit of such refusal or neglect and such Registrar is also appointed to do all acts and things necessary to give validity and operation to any such document.

14.

That upon the assignment of the home to the husband, the husband shall forward to the wife, at her expense, her clothing and personal effects and jewellery.

15.

That unless otherwise specified in these orders:

(i) each party is solely entitled to the exclusion of others to all other property and chattels of whatsoever nature and kind in the possession of each party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements, and the chattels in the real property are deemed to be in the possession of the husband;

(ii) each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

16.

That all outsanding applications are otherwise dismissed.

17.

That the matter be removed from the Pending Cases list.

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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