VILNIUS & VILNIUS - [2016] FamCA 16

FAMILY COURT OF AUSTRALIA

VILNIUS & VILNIUS

[2016] FamCA 16

FAMILY LAW – CHILDREN – Interim parenting – where mother unilaterally changed the child’s school – where both father and mother now post-separation reside some distance from the old school – where child now enrolled in school close to the mother’s residence – where question of equal shared parental responsibility agreed – where mother and father agree that the child should reside primarily with one or the other – where agreement as to time with the non-resident parent – where consideration as to the best interests of the child – where child to live primarily with the mother – where child will spend substantial and significant time with the father.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Kirkland and Granger [2007] FamCA 1471
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461
Raymond and Harold [2009] FamCA 155
Re G: Children’s Schooling [2000] FamCA 462

APPLICANT:

Mr Vilnius

RESPONDENT:

Ms Vilnius

FILE NUMBER:

PAC

4975

2014

DATE DELIVERED:

22 January 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

18 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Giacomo

SOLICITOR FOR THE APPLICANT:

DIB Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Morley

SOLICITOR FOR THE RESPONDENT:

Ghobrial Legal

Orders Until Further Order:

That by consent the mother and father have equal shared parental responsibility for the child B born on … 2007 (“the child”).
That the child reside with the mother.
That the child spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement as follows:
(a)       During school term each alternate weekend from after school Friday to before school Monday commencing on the first weekend after the resumption of school term that the mother is required to work and then each alternate weekend thereafter,
(b)       During school term from after school Wednesday to before school Thursday in each week,
(c)       For first half of the child’s school holidays commencing on the day school term concludes from after school to the midpoint day of such holiday periods at 5pm,
(d)       That for the purposes of changeovers where not at school the father shall return the child to the mother’s residence at the conclusion of the child’s time with him.
That if applicable the child’s time with the father shall be suspended on the Mother’s Day weekend provided always that the child’s time with the mother shall if applicable be suspended and the child shall spend the Father’s Day weekend with the father in addition to any other time provided.
That the mother shall use her best endeavours, save for extenuating circumstances, to avoid the child being carried…

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: VILNIUS & VILNIUS [2016] FamCA 16
Case: [2016] FamCA 16
Decision Date: 22 January 2016

CaseChat Overview and Summary

The parties to this proceeding were Vilnius and Vilnius, the applicants, and the respondent, whose identity is not specified in the provided text. The dispute concerned an application for an order for the sale of property. The matter came before Foster J of the Supreme Court of New South Wales.

The central legal issue before the Court was whether an order for the sale of property should be made pursuant to section 90 of the *Real Property Act 1900* (NSW). This required the Court to consider the circumstances under which such an order would be just and equitable, particularly in light of the applicants' claim that the property was held by the respondent on trust for them.

Foster J's reasoning focused on the equitable principles governing trusts and the statutory power to order sale. The Court examined the evidence presented by the applicants to establish the existence of a trust, considering whether the respondent's acquisition and holding of the property were demonstrably for the benefit of the applicants. The Court applied the principles that a trust must be established with sufficient certainty and that an order for sale under section 90 is a discretionary remedy to be exercised where it is just and equitable to do so, taking into account all relevant circumstances, including the nature of the parties' relationship and the beneficial interests claimed.

The Court ultimately ordered the sale of the property.

Orders