Teasdale and Teasdale (No.2) - [2018] FCCA 3297

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEASDALE & TEASDALE (No.2) [2018] FCCA 3297

Catchwords:
FAMILY LAW – Parenting – best interests of children – financial agreement – application by husband to set aside agreement – financial agreement set aside – property adjustment orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D, 75, 79, 90G, 90K

Cases cited:

Hoult & Hoult [2013] FamCAFC 109
Manner & Manner [2015] FCCA 3043
Lotta & Lotta [2016] FamCA 50

Applicant: MR TEASDALE

Respondent: MS TEASDALE

File Number: PAC 3041 of 2013

Judgment of: Judge Newbrun

Hearing dates: 31 July, 1-2 August, 23-25 October 2017, 6 July 2018

Date of Last Submission: 14 August 2018

Delivered at: Parramatta

Delivered on: 23 November 2018
REPRESENTATION

Counsel for the Applicant: Mr Breeze

Solicitors for the Applicant: Michael Vassili Barristers & Solicitors

Counsel for the Respondent: Mr Battley

Solicitors for the Respondent: [omitted]

Counsel for the Independent Children's Lawyer: Ms Snelling

Solicitors for the Independent Children's Lawyer: Stephen W Bell & Associates
ORDERS
Parenting
(1)That all previous parenting Orders be discharged.
(2)That the husband have sole parental responsibility for children [X] born 2006 and [Y] born 2009 (‘the children’), subject to the husband advising the wife of any decisions affecting the long term welfare of the children at least 14 days prior to any change.
(3)That the children live with the husband.
(4)That the children spend time with the wife as follows:
(a)In week one and each alternate week thereafter from after school Friday to the commencement of school the following Tuesday.
(b)In week two from after school Thursday to the commencement of school the following Friday.
(c)For half of all school holidays being the first half in odd numbered years and the second half in even numbered years unless otherwise agreed between the parties.
(d)If the children are not otherwise living with the wife pursuant to Orders 4(a), 4(b) or 4(c) on each child’s birthday from after school to 7 pm if the birthday falls on a weekday or from 2 pm to 8 pm should the birthday fall on a weekend.
(e)Such other times as agreed between the parties.

(5)For the purpose of Order 4(c) the first half of the school holidays commences after school on the last day of term and concludes at noon on the Saturday closest to the middle of the school holiday period and the second half of the school holiday period commences at noon on the Saturday closest to the middle of the holiday period and concludes at noon on the day before the children’s first day at school in the new term.
(6)That the parties will independently attend upon a parenting course nominated by the Independent Children’s Lawyer as soon as practicable.
(7)That the wife will attend upon a psychologist as recommended by the Independent Children’s Lawyer to undertake therapy as recommended by Dr R and the wife has leave to provide the expert’s report to the psychologist.
(8)That the Independent Children’s Lawyer will provide in…

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

Case: [2018] FCCA 3297
Decision Date: 23 November 2018

CaseChat Overview and Summary

This matter concerned parenting and property disputes between the husband and wife, heard by Judge Newbrun. The court was required to determine the parenting arrangements for the parties' two children, born in 2006 and 2009, and to make orders regarding the division of the parties' property.

The court was asked to determine the appropriate parenting orders, including issues of parental responsibility, living arrangements, and time spent with each parent. In relation to property, the court was required to consider the validity of a Financial Agreement made in 2012 and to make orders for the division of various assets, including monies held in trust and superannuation entitlements.

The court ordered that all previous parenting orders be discharged. The husband was granted sole parental responsibility for the children, with the children to live with him. Specific time arrangements were set for the children to spend with the wife, including alternate weeks and defined periods during school holidays and birthdays. The court also made detailed orders regarding communication between the parties concerning the children's welfare, education, and medical needs, and mandated attendance at parenting courses and psychological therapy for the wife. Regarding property, the court set aside the Financial Agreement of 5 November 2012. The monies held in trust by the wife's solicitors and in a disputed trust account were to be divided equally between the parties. Each party was to retain their own superannuation entitlements and all other property in their possession, title, or name, with each party indemnifying the other against any personal liabilities. The court also made provisions for the execution of necessary documents and the severance of any joint tenancies.

Orders

Orders of the court

Parenting

(1) That all previous parenting Orders be discharged.

(2) That the husband have sole parental responsibility for children [X] born 2006 and [Y] born 2009 (‘the children’), subject to the husband advising the wife of any decisions affecting the long term welfare of the children at least 14 days prior to any change.

(3) That the children live with the husband.

(4) That the children spend time with the wife as follows:

(a) In week one and each alternate week thereafter from after school Friday to the commencement of school the following Tuesday.

(b) In week two from after school Thursday to the commencement of school the following Friday.

(c) For half of all school holidays being the first half in odd numbered years and the second half in even numbered years unless otherwise agreed between the parties.

(d) If the children are not otherwise living with the wife pursuant to Orders 4(a), 4(b) or 4(c) on each child’s birthday from after school to 7 pm if the birthday falls on a weekday or from 2 pm to 8 pm should the birthday fall on a weekend.

(e) Such other times as agreed between the parties.

(5) For the purpose of Order 4(c) the first half of the school holidays commences after school on the last day of term and concludes at noon on the Saturday closest to the middle of the school holiday period and the second half of the school holiday period commences at noon on the Saturday closest to the middle of the holiday period and concludes at noon on the day before the children’s first day at school in the new term.

(6) That the parties will independently attend upon a parenting course nominated by the Independent Children’s Lawyer as soon as practicable.

(7) That the wife will attend upon a psychologist as recommended by the Independent Children’s Lawyer to undertake therapy as recommended by Dr R and the wife has leave to provide the expert’s report to the psychologist.

(8) That the Independent Children’s Lawyer will provide in writing to the parties details of appropriate parenting courses and psychologist or therapist selected by the Independent Children’s Lawyer for counselling and support and such details are to include the name, address, availability and costs of any of the chosen therapist.

(9) That the wife will comply with the selected therapist’s reasonable directions.

(10) That the wife will do all acts and things to obtain, if applicable, any Medicare rebate in respect of her proposed therapy.

(11) The parties will facilitate the children telephoning the other party in the event the children or either of them express a wish to do so.

(12) The parties will keep each other informed of their mobile and landline telephone numbers and an email address to be used for the purposes of parenting issues only and advise of any change within 7 days.

(13) That this Order is sufficient authority for the schools the children from time to time attend to give each parent information about each of the children’s educational progress and other school related activities and supply each parent with copies of school reports, photographs, certificates and awards obtained by the children at the requesting parent’s cost and both parents are at liberty to attend any school events such as parent/teacher interviews, sports carnivals or productions.

(14) That the parties inform each other in relation to:

(a) The enrolment of the children into extra-curricular activities including any groups and associations;

(b) The children playing or being involved in any sporting activity or tuition and attendance at sports camps;

(15) That each parent inform the other of any change to their residential address within 7 days of such change.

(16) That each parent keeps the other parent informed of the names and addresses of any and all medical practitioners and therapists who are involved in treating or caring for the children.

(17) Should either child suffer any illness or medical emergency:

(a) The parent with the care of the child shall as soon as reasonably practicable, and at least within 12 hours, inform the other parent of any serious medical condition, health issue or illness suffered by the child, requiring the child to be absent from school;

(b) In the event there is a medical emergency requiring either child to be hospitalised, notification to the other parent shall be made forthwith.

(c) The parent with the care of the child shall supply to the other parent the name and contact number of any medical practitioner upon whom they have attended with the child.

(18) That these Orders are authority for any treating medical practitioner, specialist or dentist to release the child’s medical information to each parent, excluding therapeutic counselling subject to any strong wishes of the children to the contrary.

(19) That the husband and wife each refrain from:

(a) Denigrating or criticising the other parent to the children or allowing any third person to denigrate or criticise the other parent within the presence or hearing of the children;

(b) Discussing with the children these proceedings (save and except for the effect of the terms of these Orders).

Property

(20) That the Financial Agreement entered into by the parties on 5 November 2012 pursuant to section 90C of the Family Law Act 1975 be set aside.

(21) That the total monies held by the wife’s solicitors in trust for the parties in the sum of approximately $160,111.81 be divided equally between the parties.

(22) That the total monies held in the disputed trust account of Company A trading as Company B in the sum of $46,461.55 with Bank 1 be divided equally between the parties.

(23) That the parties retain all their right title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.

(24) That other than as otherwise set out in this agreement, the parties have the sole right title and interest in any other property which is at the date hereof in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.

(25) That the Respondent and Applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.

(26) That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

(27) That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent Orders:

(a) Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these Orders;

(b) Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

(c) Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders;

(d) All insurance policies are to become the sole property of the owner named hereon; and

(e) Any party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

(f) Any joint tenancy of the husband and wife in any real or personal estate is hereby expressly severed.

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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