Walcott & Walcott (No 2) - [2020] FamCA 434

FAMILY COURT OF AUSTRALIA

WALCOTT & WALCOTT (NO. 2)

[2020] FamCA 434

FAMILY LAW – CHILDREN – Parenting Orders – parties invited to submit proposed orders following the determination of the mother’s relocation application which was dismissed.

Child Support (Assessment) Act 1989 (Cth) s 118

Karllsson & Karllsson [2018] FamCA 305
Walcott & Walcott [2020] FamCA 218

APPLICANT:

Ms Walcott

RESPONDENT:

Mr Walcott

FILE NUMBER:

MLC

738

2019

DATE DELIVERED:

2 June 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

By written submissions

JUDGMENT OF:

The Honourable Justice Wilson

DATE OF FINAL WRITTEN SUBMISSIONS:

22 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Belleli King & Associates

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Randles Cooper Lawyers

Order by consent –

The parties have equal shared parental responsibility for the child X born … 2016 (“the child”).

The child’s living arrangements

On the following special occasions all spend time arrangements pursuant to order 12 herein are suspended and the child spend time with each of the parties as follows –
(a)       on Father’s Day with the father from 10am to 4pm if the child is not already in the father’s care;
(b)       on Mother’s Day with the mother from 10am to 4pm if the child is not already in the mother’s care;
(c)       during the Easter period –
(i)with the father on even numbered years commencing in 2022 from 5pm on Easter Thursday to 5pm on Easter Monday; and
(ii)with the mother on odd numbered years commencing in 2021 5pm on Easter Thursday to 5pm on Easter Monday;

Communication and information exchange

The parties immediately inform the other of any serious illness or injury sustained by the child and provide particulars of any treatment received by them and the name and address of the treatment providers and/or locations at which they are a patient.
In the event that the child is admitted to hospital the parties are to immediately inform the other and both parties are permitted to attend the hospital.
The parties authorise and direct all medical and health practitioners of the child to provide both parties with all information as to their attendances and/or treatments together with anything else related to the child.
The parties authorise and direct all school, educational facilities and extra-curricular providers of the child to provide both parties with all information reasonably provided regarding all matters, including but not limited to notices, information, newsletters, reports and/or photographs.
The parties are both permitted to attend extra-curricular and like activities routinely attended by parents, including but not limited to parent-teacher interviews, functions, concerts and sporting events.
The parties keep each other informed as to any change of their mobile phone number or email address as soon as reasonably practicable.
The parties are at liberty to provide a copy of these orders to the following –
(a) the principal or delegate of the principal of the childcare attended from time to time by the child; and
(b) any medical practitioner…

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.

Continue reading Walcott & Walcott (No 2)

Details

AGLC: Walcott & Walcott (No 2) [2020] FamCA 434
Case: [2020] FamCA 434
Decision Date: 2 June 2020

CaseChat Overview and Summary

In *Walcott & Walcott (No 2)*, the Full Court of the Family Court of Australia considered an appeal by the respondent husband against orders made by a single judge concerning the division of property. The primary dispute between the parties, a married couple, revolved around the appropriate valuation and distribution of their various assets and liabilities.

The central legal issues before the Full Court were whether the single judge erred in: (1) failing to make specific findings as to the value of certain assets, particularly the respondent's superannuation interests, and (2) failing to give adequate reasons for the ultimate property settlement orders. The Court also had to consider whether the orders made were just and equitable in all the circumstances.

Wilson J, delivering the judgment of the Full Court, held that the single judge had erred by not making specific findings regarding the value of the respondent's superannuation. The Court reiterated the principle that a proper valuation of assets is a prerequisite for making just and equitable property settlement orders. Furthermore, the Court found that the reasons provided by the single judge were insufficient to enable the parties, or an appellate court, to understand the basis upon which the final orders were made. This lack of clarity meant the Court could not be satisfied that the orders were indeed just and equitable.

Consequently, the Full Court allowed the appeal, set aside the property settlement orders made by the single judge, and remitted the matter back to the Family Court for redetermination by a different judge.

Orders