Warnold & Bleauchamp - [2009] FamCA 214

FAMILY COURT OF AUSTRALIA

WARNOLD & BLEAUCHAMP

[2009] FamCA 214

FAMILY LAW – CHILDREN – best interests – whether parents entitled to equal shared parental responsibility despite lack of agreement about major long-term issues and substantially different views about other parenting styles – with whom a child spends time – equal time – substantial and significant time

FAMILY LAW – PROPERTY – DOMESTIC RELATIONSHIP – whether a domestic relationship existed under Domestic Relationships Act 1994 (ACT) – whether or not both parties must provide material benefit to the other party in order to have a domestic relationship – meaning of the words “nature and duration of the relationship” in determining each parties’ contributions under s 15(1) of the Domestic Relationships Act 1994 (ACT) – significance of difference between Domestic Relationships Act 1994 (ACT) and Property (Relationships) Act 1984 (NSW) with respect to the term “nature and duration of relationship” – significance of different earning capacities of each party – whether taxation liability should be taken into account as a factor under s 19(2) of the Domestic Relationships Act 1994 (ACT) – whether a moral promise to share in proceeds of sale of a business should be taken into account as a factor under s 19(2) of the Domestic Relationships Act 1994 (ACT)

FAMILY LAW – EVIDENCE – Family Report

FAMILY LAW – JURISDICTION – Cross vesting under s 4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT)

Domestic Relationships Act 1994 (ACT)
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT)
Legislation Act 2001 (ACT)
Limitation Act 1985 (ACT)
Property (Relationships) Act 1984 (NSW)

Af-Petersens v Af-Petersens (1981) FLC 91-095
Ferris v Winslade [1998] ACTSC 172
Lee Steere & Lee Steere (1985) FLC 91-626
McKenzie v Storer [2007] ACTSC 88
Pastern & Pastern [2007] FamCA 620
Parshen & Parshen (1996) 136 FLR 185
Rosati & Rosati (1998) FLC 92-804
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPLICANT:

Mr Warnold

RESPONDENT:

Ms Bleauchamp

FILE NUMBER:

CAC

975

2007

DATE DELIVERED:

24 March 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

11 & 12 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Brzostowski SC

SOLICITOR FOR THE APPLICANT:

Mr M Eley

COUNSEL FOR THE RESPONDENT:

Ms J Godtschalk

SOLICITOR FOR THE RESPONDENT:

Mr M Kukulies-Smith

Orders

Child matters

Otherwise than as herein provided both the mother and father of …, born on … June 1999 (“the child”) will share equal responsibility for him.
a. Notwithstanding the last order the child’s mother will have sole parental responsibility for all decisions relating to his health and ongoing medical treatment including but not limited to the administration of immunotherapy medication as prescribed by the relevant specialist or other medical practitioner.
b.Notwithstanding the last sub-order in relation to all matters relating to the child’s health the mother will consult with the father and keep him advised of all aspects of any treatment that the child may be undergoing or any appointments that the child will…

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 Warnold & Bleauchamp

Details

AGLC: Warnold & Bleauchamp [2009] FamCA 214
Case: [2009] FamCA 214
Decision Date: 24 March 2009

CaseChat Overview and Summary

In *Warnold & Bleauchamp*, the parties, the mother and father of a child, brought proceedings before the Federal Magistrates Court of Australia concerning parenting arrangements and property settlement. The dispute involved disagreements over major long-term issues concerning the child, as well as differing views on parenting styles. The court was also required to determine the existence of a domestic relationship for property settlement purposes under the *Domestic Relationships Act 1994* (ACT).

The court was tasked with determining the best interests of the child, specifically whether equal shared parental responsibility was appropriate despite the parties' lack of agreement on significant parenting matters. This included deciding with whom the child would spend time, and whether that time should be equal or substantial and significant. In relation to property, the court had to ascertain if a domestic relationship existed under the *Domestic Relationships Act 1994* (ACT), considering whether mutual material benefit was a prerequisite and the meaning of "nature and duration of the relationship" in assessing contributions. The court also had to consider the significance of differences between the ACT and NSW legislation regarding this term, the parties' differing earning capacities, and whether taxation liability and a moral promise to share business proceeds should be taken into account.

The court found that while the parents would share equal responsibility for the child, the mother would have sole parental responsibility for all decisions relating to the child's health, though she was required to consult with and keep the father advised. The child was ordered to live with the mother. The father was granted time with the child on alternate weekends during school terms, and the child was to spend half of each school holiday period with each parent, with specific arrangements for longer summer holidays and Christmas. In relation to property, the court determined that a domestic relationship existed and proceeded to consider the division of property.

The court made orders for the child's living arrangements and time with each parent, as well as orders for property settlement.

Orders

Orders of the court

Child matters

Otherwise than as herein provided both the mother and father of …, born on … June 1999 (“the child”) will share equal responsibility for him.

a. Notwithstanding the last order the child’s mother will have sole parental responsibility for all decisions relating to his health and ongoing medical treatment including but not limited to the administration of immunotherapy medication as prescribed by the relevant specialist or other medical practitioner.

b. Notwithstanding the last sub-order in relation to all matters relating to the child’s health the mother will consult with the father and keep him advised of all aspects of any treatment that the child may be undergoing or any appointments that the child will be attending.

The child will live with his mother.

a. The child will spend time with his father during school terms on each alternate weekend, unless the parents otherwise agree, from after school on the Friday until Monday morning when, unless the parents otherwise agree, he will return the child to school.

b. The first of such weekends will commence on 27 March 2009, unless the parents otherwise agree.

a. The child will spend half of each school term holiday period (including the longer summer vacation with each of his parents). Unless the parents otherwise agree he will spend the first half of the term school holidays with his father in the year 2009 and with his mother in 2010 and alternating each year thereafter.

b. So far as the longer school holidays are concerned the child will spend two weeks in the first half of each summer school holidays with his mother (unless the parents otherwise agree) and one with his father.

In each alternate year it is expected by the parents, and they will arrange it so that the child spends the week immediately preceding Christmas with his father including Christmas Day up until 2pm on Christmas Day. The first of such years will be 2009.

In the years when the child does not spend the week before Christmas with his father the child will spend from 2pm on Christmas Day until 5:30pm on Boxing Day with his father

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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