W & W & L

Case [2007] FMCAfam 438


FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & W & L [2007] FMCAfam 602

FAMILY LAW – Children – lives with and time with – re-location – family violence.

FAMILY LAW – Property.

Family Law Act 1975, Part VII and Part VIII
Evidence Act 1995 s.131
A & A (Relocation Approach) [2000] FamCA 751; (2000) FLC 93-035
AMS v AIF [1999] HCA 26; (1999) FLC 92-852
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
B v B (1993) FLC 92-357
B v B (Re Jurisdiction) (2003) FLC 93-136
Brandt & Brandt (1997) FLC 92-758
Clauson& Clauson (1995) FLC 92-595
Coghlan & Coghlan [2005] FamCA 429; (2005) FLC 93-220
D & D [2005] FamCA 356
Doherty and Doherty (1996) FLC 92-652
Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-06
Figgins & Figgins [2002] FamCA 688; (2002) FLC 93-122
G & G (1984) FLC 91-582
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
HDM & MM and SJM [2006] FamCA 47
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
JB and BG (1994) FLC 2-515
Kennon v. Kennon (1997) FLC 92-757
KN and Child Representative & NN and JN [2006] FamCA 611
M & A [2007] FMCAfam 52
M & M [2006] FamCA 913; (2006) FLC 93-281
M and S (formerly E) [2006] FamCA 1408
M v M [1988] HCA 68; (1988) 166 CLR 69; (1988) FLC 91-979
Martin v Matruglio (1999) FLC 92-876
N and S and the Separate Representative [1996] FamCA unrep925; (1996) FLC 92-655
Norbis & Norbis (1986) 161 CLR 513; (1986) FLC 91-712
Omanici & Omanici [2005] FamCA 195; (2005) FLC 93-218
Paskandy v Paskandy (1999) FLC 92-878
Pierce and Pierce [1998] FamCA 74; (1998) FLC 92-644
R and R: Children's Wishes (2000) FLC 93-000
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768; (2004) FLC 93-192
Robb & Robb (1995) FLC 92-555
Russell & Russell [1999] FamCA 1875; (1999) FLC 2-877
SDS & ACS [2006] FMCAfam 678
U v. U (2002) 211 CLR 238; (2002) FLC 93-112
Weir and Weir [1993] FamCA unrep469; (1993) FLC 92-338
West and Green (1993) FLC 92-395
Zalewski & Zalewski [2005] FamCA 996; (2005) FLC 93-241
Applicant: MR W
First Respondent: MS W
Second Respondent MR L
File Number: MLM2191 of 2006
Judgment of: FM Riethmuller
Hearing date: 13 December 2006
Date of Last Submission: 28 December 2006
Delivered at: Melbourne
Delivered on: 29 June 2007

REPRESENTATION

Counsel for the Applicant: Ms Buchanan
Solicitors for the Applicant: Gray Friend and Long
Counsel for the First Respondent: Mr Arnold
Solicitors for the First Respondent: Coadys
Counsel for the Second Respondent: Mr Crowther
Counsel for the Independent Children’s Lawyer: Ms Dowler
Solicitors for the Independent Children’s Lawyer: Donald S Lampe

ORDERS

A and B

  1. That the children A born xxxx, B born xxxx live with the First Respondent.

  2. That…

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AGLC
W & W & L [2007] FMCAfam 438
Case
[2007] FMCAfam 438
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of W & W & L involved a dispute between the parties regarding the living arrangements for their children, the allocation of parental responsibility, and the division of property. The court was required to decide on the best living arrangements for the children, the allocation of parental responsibility, and the division of property between the parties.

The court considered the evidence presented by both parties and found that the children should live with the First Respondent, with specific time arrangements for the Second Respondent. The court also found that the parties should have equal shared parental responsibility for the children. The court further ordered that the children should live in the Mornington Peninsula area of Victoria unless otherwise agreed in writing by the parties. The court also granted the Second Respondent the right to communicate with the children by telephone and to liaise directly with the children's school and sporting bodies.

In relation to the division of property, the court ordered that the property at 442 Y Road, Y be sold, and the proceeds of sale be applied in a specific manner. The court also made orders in relation to the division of superannuation and other property between the parties.

The court made specific orders in relation to the children's time with the Second Respondent, including details of handovers and communication between the parties. The court also made orders in relation to the children's medical treatment and progress, and the sharing of information between the parties.

The court's final orders included detailed provisions for the living arrangements and time with the children, the allocation of parental responsibility, and the division of property between the parties. The court also made orders in relation to the parties' communication and liaising with the children's school and sporting bodies.

Orders

Orders of the court

A and B

1.

That the children A born xxxx, B born xxxx live with the First Respondent.

2.

That the children A born xxxx, B born xxxx live in the Mornington Peninsular area of Victoria, unless otherwise agreed in writing between the Applicant and the First Respondent and the Second Respondent.

3.

That the First and Second Respondents have equal shared parental responsibility for the children A and B.

4.

That the children A and B spend time with the Second Respondent as agreed between the First and Second Respondents, and failing agreement as follows:

(a) Each alternate weekend, from 6pm Friday until 6pm Sunday;

(b) For one half of all school holidays including the Christmas vacation, being the second half in odd numbered years, and the first half in even numbered years;

(c) From 5pm on 24 December to 12md on 25 December in odd numbered years;

(d) On father’s day from 10am until 6pm;

(e) On each child’s birthday, on the father’s birthday, on D L’s birthday and on C L’s birthday, for at least 4 hours if the birthday falls on a non-school day and no less than 2 hours if the birthday falls on a school day.

5.

Notwithstanding order 4:

(a) The Second Respondent’s time with the children A and B end at 10am on Mother’s day;

(b) The children have time with the First Respondent from 5pm on 24 December to 12md on 25 December in even numbered years.

(c) The children spend time with the First Respondent on each child’s birthday, on the mother’s birthday, and on C’s birthday, for at least 4 hours if the birthday falls on a non-school day and no less than 2 hours if the birthday falls on a school day.

6.

That for the purpose of Orders 4 and 5 handovers take place at the Hastings Police Station.

7.

That the Second Respondent be permitted to communicate with A and B by telephone no less than each Tuesday and Thursday between 6.30pm to 7.30pm.

8.

That each of the First and Second Respondents forthwith notify the other of any illness (and in particular A’s cystic fibrosis and B’s Turner’s syndrome), medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner or medical facility that provided medical treatment for the child.

9.

That the First Respondent forthwith authorise the children’s medical practitioners to discuss fully the children's treatment and conditions with the Second Respondent, and notify him of appointments for the children to attend upon such practitioners.

10.

That the Second Respondent be permitted to liaise directly with the children's school and sporting bodies to obtain any necessary information about the children's progress. The Second Respondent is to forthwith authorise the school and sporting bodies in writing to facilitate this.

C

11.

That the child C born xxxx live with the First Respondent.

12.

That the child C born xxxx live in the Mornington Peninsular area of Victoria, unless otherwise agreed in writing between the Applicant and the First Respondent.

13.

That the Applicant and First Respondent have equal shared parental responsibility for C.

14.

That the child C spend time with the applicant as agreed between the Applicant and First Respondent, and failing agreement as follows:

(a) Until the Applicant successfully completes the courses ordered herein:

(i) Each alternate weekend, from 9am Saturday until 6pm Sunday;

(ii) For one half of all school holidays including the Christmas vacation, being the second half in odd numbered years, and the first half in even numbered years, provided that the child is returned to the First Respondent’s care each third day from 6pm until 9am the following morning;

(iii) From 5pm on 24 December to 12md on 25 December in odd numbered years;

(iv) On father’s day from 10am until 6pm;

(v) On the child’s birthday and on the father’s birthday for at least 4 hours if the birthday falls on a non-school day and no less than 2 hours if the birthday falls on a school day.

(b) Following the Applicant’s successful completion of the courses ordered herein:

(i) Each alternate weekend, from after school on Friday until 6pm on Sunday;

(ii) For one half of all school holidays including the Christmas vacation, being the second half in odd numbered years, and the first half in even numbered years;

(iii) From 5pm on 24 December to 12md on 25 December in odd numbered years;

(iv) On father’s day from 10am until 6pm; and

(v) On the child’s birthday and on the father’s birthday for at least 4 hours if the birthday falls on a non-school day and no less than 2 hours if the birthday falls on a school day.

(c) Notwithstanding sub-orders (a) and (b):

(i) The First Respondent’s time with the child end at 10am on Mother’s day;

(ii) From 5pm on 24 December to 12md on 25 December in even numbered years; and

(iii) The child spend time with the First Respondent on the child’s birthday, on the mother’s birthday, and on A and B’s birthdays, for at least 4 hours if the birthday falls on a non-school day and no less than 2 hours if the birthday falls on a school day.

15.

That the Applicant be permitted to communicate with C by telephone no less than each Tuesday and Thursday between 6.30 pm to 7.30pm.

16.

That the Applicant be restrained, and an injunction issue restraining the Applicant from:

(a) Physically disciplining the child C; and

(b) consuming alcohol for the period 12 hours prior to time with C, or during the time that she is in his care.

17.

That for the purpose of Order 14 handovers take place at a location to be agreed and failing agreement the Hastings Police Station.

18.

That each of the Applicant and First Respondent forthwith notify the other of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to C when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner or medical facility that provided medical treatment for the child.

19.

That the First Respondent forthwith authorise the C’s medical practitioners to discuss fully the child's treatment and conditions with the Applicant, and notify him of appointments for the children to attend upon such practitioners.

20.

That the Applicant be permitted to liaise directly with the C school and sporting bodies to obtain any necessary information about the child's progress. The First Respondent is to forthwith authorise the school and sporting bodies in writing to facilitate this.

Courses

21.

The Applicant and the Second Respondent, within 12 months of the date of these orders:

(a) attend and complete, as soon as practicable, the Parenting Apart post separation parenting program ("the Program") at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;

(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

(c) pay and otherwise be responsible for all costs associated with the Program; and

(d) provide an appropriate certificate of completion of the Program to the first Respondent or her solicitors.

22.

That within 6 months of the date of these orders the Applicant complete an anger management course.

Property Orders

23.

That the property situate at 442 Y Road, Y be sold, and the proceeds of sale applied as follows:

(a) Payment of the costs and expenses of sale;

(b) Discharge of the mortgage;

(c) Payment of the sum of $51,100 to the First Respondent.

(d) The balance of the proceeds of sale be divided and paid to the Applicant and First Respondent in equal shares.

24.

That the parties have liberty to apply for further or consequential orders to effect the sale of the property referred to in order 23.

25.

Whenever a splittable payment is payable in respect of the superannuation interest of Mr W (member 15334431) in the ARF Super Fund (AustralianSuper):

(a) Ms W is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $24,500 at the operative time of the date 4 days after the service of this order on the fund;

(b) There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order; and

(c) The above order binds the trustee or trustees from time to time of the superannuation fund.

26.

Unless otherwise specified in these orders and save for the purposes of any monies due under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the said former matrimonial home being deemed to be in the possession of The Applicant).

(b) Insurance policies remain the sole property of the owner named therein.

(c) Each 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.

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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