FAMILY COURT OF AUSTRALIA
| UZUNLAR & UZUNLAR | [2017] FamCA 111 |
| FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the presumption in favour of equal shared parental responsibility is rebutted – Where there are allegations of family violence made against both parents – Consideration of whether there is a risk of harm to the children – Where a finding is made that the children are exposed to conflict during changeovers – Consideration of s 60CC factors – Where each party has the capacity to provide for the children’s needs – Orders made for the children to remain living with the mother – Orders made for the father to spend substantial and significant time with the children and minimising the number of face-to-face changeovers to occur between the parties. |
FAMILY LAW – PROPERTY – SPOUSAL MAINTENANCE – INTERIM PROCEEDINGS –Where the wife seeks orders for periodic spousal maintenance - Where the wife has the primary care of the parties’ two children – Where the wife is found to be unable to support herself adequately – Where the husband has the capacity to provide financial support to the wife– Where orders are made that the husband pay the wife periodic spousal maintenance, the sum to be reduced after 12 months in anticipation of the wife returning to work – Where orders are made to allow the husband to make the payments on a monthly or quarterly basis.
FAMILY LAW – PROPERTY – PARTIAL PROPERTY DISTRIBUTION – INTERIM PROCEEDINGS – Where the husband seeks orders for an interim property distribution – Where there is insufficient evidence of the husband’s financial circumstances – Where the Court is not satisfied that it would be just and equitable to make orders for an interim property distribution – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Financial Disclosure – Consideration of whether a document is relevant for the purposes of r 13.07 of the Family Law Rules 2004 (Cth) – Orders made for parties to provide financial disclosure in accordance with the Family Law Rules.
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 43(1)(c), 60B, 60CA, 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA(1), 61DA(3), 65AA, 65DAA, 65DAA(3), 72(1), 72(1)(c), 75(2), 75(2)(na), 75(3), 79(4), 80(1), 80(1)(h) Family Law Rules 2004 (Cth) rr 4.15, 13.07, 13.22 |
| Banks & Banks (2015) FLC 93-637 Maroney & Maroney [2009] FamCAFC 45 |
| APPLICANT: | Ms Uzunlar |
| RESPONDENT: | Mr Uzunlar |
| FILE NUMBER: | SYC | 7473 | of | 2016 |
| DATE… |
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- AGLC
- Uzunlar & Uzunlar [2017] FamCA 111
- Case
- [2017] FamCA 111
- Decision Date
CaseChat Overview and Summary
The court was required to determine the quantum and duration of spousal maintenance payable by the father to the mother, and to establish a parenting regime for the children, specifying where they would live and the time they would spend with each parent. Additionally, the court needed to set out a process for the disclosure of documents between the parties, including the procedure for requesting, providing, and inspecting documents, and the steps to be taken if a party disputed the adequacy or accuracy of the disclosure provided.
In relation to spousal maintenance, the court ordered the father to pay $679.74 per week for the first 12 months, followed by $500 per week thereafter, with flexibility for monthly or quarterly advance payments. For parenting, the children were ordered to live with the mother, with specific arrangements for their time with the father during school terms and holidays, including defined changeover locations and times. The court also established a detailed disclosure protocol, requiring parties to serve written requests for documents, provide lists of documents within their possession or control, and allow for inspection and copying of those documents, subject to claims of privilege or loss of control. Any disputes regarding disclosure were to be addressed through formal applications supported by affidavits detailing the relevance and importance of the requested information.
Orders
Orders of the court
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Spousal Maintenance
1.
For a period of 12 months from the date of these Orders, the father is to pay spousal maintenance to the mother in the sum of $679.74 per week.
2.
After the period of 12 months from the date of these Orders, the father shall pay spousal maintenance to the mother in the sum of $500 per week.
3.
The father is permitted to pay spousal maintenance to the mother as provided for in Orders 1 and 2 above, on either a monthly or quarterly basis provided that amount is paid in advance.
Parenting
4.
The children are to live with the mother.
5.
The children are to spend time with the father:
(a) During school term, in alternate weeks as follows:
(i) In Week One: from after school on Wednesday to before school on Thursday; and,
(ii) In Week Two: from after school on Friday to before school on Monday.
(b) During school holidays, in alternate weeks as follows:
(i) In Week One: from 5.00 pm on Friday until 8.00 am Monday, and
(ii) In Week Two: from 5.00 pm Monday until 8.00 am on Thursday
6.
Changeover shall occur:
(a) On school days at the children’s school, and,
(b) On non-school days - at a public place agreed between the parties and which is equidistant between the parties’ residences, and in the absence of agreement, at Suburb I McDonalds.
Disclosure
7.
Within seven (7) days of the date of these Orders each party shall serve on the other party’s legal representative a request, in writing, in which the party nominates the specified document(s) or class of documents that he or she seeks to be disclosed.
8.
The party receiving the request for further disclosure pursuant to Order (7) above must, within fourteen (14) days after receiving notice, serve on the requesting party a list of documents identifying:
(a) The document(s) in that party’s possession that are within the class of documents sought by the other party;
(b) The document(s) no longer in the disclosing party’s possession or control with a brief statement about the circumstances in which the document(s) left the party’s possession or control; and
(c) The document(s) for which privilege from production is claimed.
9.
Within seven (7) days of receiving the list of documents referred to in Order (8) above, the requesting party must, in writing, ask the disclosing party to:
(a) Produce the document(s) for inspection; or
(b) Provide a copy of the document(s).
10.
The disclosing party must within fourteen (14) days after receiving a notice under Order (9), give the requesting party, at the requesting party’s expense, the copies requested, other than copies of document(s):
(a) In relation to which privilege from production is claimed; or
(b) That are no longer in the disclosing party’s possession or control.
11.
In the event of a party taking issue with the adequacy and/or accuracy of the list of documents provided pursuant to Order (8), that party may make an application pursuant to rule 13.22 of the Family Law Rules 2004 (Cth) or such application as they deem fit.
12.
Any application made pursuant to order (11) should be supported by an affidavit addressing the following matters:
(a) why the disclosure sought is relevant to an issue in dispute;
(b) the relative importance of the issue to which the document or class of documents relates;
(c) the parties’ understanding of the likely time, cost and inconvenience involved in disclosing a document or class of documents taking into account the amount of the property, or complexity of the corporate, trust or partnership interests, involved in the case;
(d) the likely effect on the outcome of the case of disclosing, or not disclosing, the document or class of documents; and
(e) any other matter that the party considers relevant.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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