VONTEK & VONTEK - [2016] FamCA 276

FAMILY COURT OF AUSTRALIA

VONTEK & VONTEK

[2016] FamCA 276

FAMILY LAW – CHILDREN – Orders by Consent - that the parents have equal shared parental responsibility for the children

FAMILY LAW – CHILDREN – Orders by determination – that the children live with the wife and spend time with the husband as agreed or failing agreement as set out in the orders

FAMILY LAW – PROPERTY – Superannuation – evaluation of contributions and future needs - just and equitable division of matrimonial property whereas the husband receives 33 per cent and the wife receives 67 per cent

Family Law Act 1975 (Cth) s 60CC, s 75(2) and s 79

Stanford v Stanford (2012) 247 CLR 108

Bevan & Bevan (2013) FLC 93-545
Chapman and Chapman (2014) FLC 93-592

APPLICANT:

Mr Vontek

RESPONDENT:

Ms Vontek

FILE NUMBER:

SYC

7165

2013

DATE DELIVERED:

14 March 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Benjamin J

HEARING DATE:

7, 8, 9, 10, 11 & 14 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd S.C.

SOLICITOR FOR THE APPLICANT:

Slater & Gordon

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Clear Lawyers

CHILDREN’S ORDERS

BY CONSENT

Mr Vontek (‘the husband’) and Ms Vontek (‘the wife’) have equal shared parental responsibility for B (born … 2006), C (born … 2008) and D (born … 2012) (‘the children’).

BY DETERMINATION

The children live with the wife.
The children spend time with the husband as is agreed in writing between the parties and in the absence of any such agreements, as is set out below.
During school terms the children shall spend time with the husband:-
a.for the remainder of 2016; each alternate weekend from after school Friday to 6.00pm Sunday;
b.from the commencement of term one in 2017; each alternate weekend from after school Friday to commencement of school Monday (or in the case of D pre-school or to the wife at 8.00am Monday, as arranged) or Tuesday if the Monday is a Public Holiday or Student Free Day;
c.such alternate weekend time to commence the first week after the commencement of school term, if the children were primarily with the wife during the last week of the preceding school holiday period and the second weekend if the children were primarily with the husband during the last week of the preceding school holiday period;
d.for the remainder of 2016; each alternate week from after school Tuesday to 7.00pm;
e.from commencement of term one in 2017; from after school Tuesday until the commencement of school Wednesday morning;
f.such alternate Tuesdays to commence the second week after the commencement of school term if the children were primarily with the wife during the last week of the preceding school holiday period and the first week if the children were primarily with the husband during the last week of the preceding school holiday period.
Subject to these orders; for one half of the mid-year school holiday periods, being the first half in even…

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: VONTEK & VONTEK [2016] FamCA 276
Case: [2016] FamCA 276
Decision Date: 14 March 2016

CaseChat Overview and Summary

The Family Court of Australia, presided over by Benjamin J, considered a dispute between the parties, Vontek and Vontek, concerning parenting arrangements and the division of matrimonial property. The parties had previously made consent orders regarding equal shared parental responsibility for their children, with the children to live with the wife and spend time with the husband as agreed, or as otherwise set out in the orders. The primary dispute before the court related to the division of the parties' superannuation interests and the overall just and equitable distribution of their matrimonial property.

The court was required to determine the appropriate division of the parties' superannuation interests, taking into account their respective contributions and future needs. Furthermore, the court had to consider how to achieve a just and equitable division of the matrimonial property, specifically in light of the significant disparity in the proposed property settlement, where the wife was to receive 67 per cent and the husband 33 per cent.

In reaching its decision, the court evaluated the contributions made by each party to the marriage, both financially and non-financially, as well as their respective future needs. The court applied the principles of the Family Law Act 1975 (Cth) to ensure a just and equitable outcome. The court's reasoning led to the conclusion that a property settlement of 67 per cent to the wife and 33 per cent to the husband was appropriate, reflecting the assessment of contributions and future needs.

Orders