Whisler and Whisler - [2009] FMCAfam 445

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHISLER & WHISLER

[2009] FMCAfam 445

FAMILY LAW – Children and property – whether children living week about with each parent should live predominately with husband or wife – whether husband’s initial greater financial contribution outweighs wife’s greater financial contribution during marriage.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DAA, 65A

Hickey [2003] FLC 93-143
C v C [2005] FLC 93-220

Applicant:

MS WHISLER

Respondent:

MR WHISLER

File Number:

MLC 9819 of 2008

Judgment of:

Phipps FM

Hearing dates:

23 & 24 March 2009

Date of Last Submission:

24 March 2009

Delivered at:

Melbourne

Delivered on:

8 May 2009

REPRESENTATION

Counsel for the Applicant:

Mr R. Allen

Solicitors for the Applicant:

Nevett Ford

Counsel for the Respondent:

Ms J. Bowden

Solicitors for the Respondent:

JDB Law

ORDERS

That all previous orders are discharged.

Children

That the Husband and the Wife have equal shared parental responsibility for the children of the marriage namely [X] born [in] 2002 and [Y] born [in] 2004 (“the children”);
That the children live with the Wife commencing at the conclusion of school today 8 May 2009.
That the children spend time with the Husband:
(a)Each alternate weekend from 3.30 pm Friday until 9.00 am Monday commencing 15 May 2009;
(b)Each Wednesday from 3.30pm to 6.00pm with [X] commencing 13 May 2009;
(c)
Each Wednesday from 9.00 am to 6.00 pm with [Y] until

18 December 2009 and thereafter each Wednesday during term time from 3.30pm to 6.00 pm commencing 13 May 2009;
That the children spend time with the Husband each Father’s Day from 9.00am until 5.00 pm and with the Wife each Mother’s Day from 9.00am until 5.00pm.
Notwithstanding Order 4, that the children spend time with the Wife from 4.00pm Christmas Day 2009 until 4.00pm Boxing Day 2009 and with the Husband from 4.00pm Christmas Eve until 4.00pm Christmas Day, such time to alternate each alternate year thereafter.
Notwithstanding Order 4, the children spend time with the Husband on the children’s birthdays if they fall on a weekday from 3.30pm to 6.00pm and from 9.00am to 1.00pm if on a weekend if the birthdays fall on the Husband’s non contact time.
Notwithstanding Order 4, that the children spend time with the Wife on the children’s birthdays if they fall on a weekday from 3.30pm to 6.00pm and from 9.00am to 1.00pm if on a weekend if the birthdays fall during the period they are spending time with the Husband.
That the children spend one half of all school holidays including the long summer vacation with each of the Husband and the Wife such time to be divided on a week about basis, up to and including the long summer holiday of 2011 and increasing to two weeks taken consecutively thereafter.
That the changeover occur at the school and kindergarten upon completion of attendance each Friday during school term and at the Wife’s residence during holidays.
That the Husband and Wife each be at liberty to communicate with the…

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 Whisler and Whisler

Details

AGLC: Whisler and Whisler [2009] FMCAfam 445
Case: [2009] FMCAfam 445
Decision Date: 8 May 2009

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Whisler and Whisler was heard. The case involved the parents, referred to as the Husband and the Wife, in a dispute concerning the care and custody of their two children, [X] and [Y], as well as the division of their property. The court was tasked with determining a parenting arrangement and making orders concerning the distribution of the couple's property.

The primary legal issues the court had to decide included establishing a parenting plan that would provide for the children's welfare and ensuring a fair division of the couple's property. The court had to consider the children's needs and the parents' ability to provide for them, as well as the financial and property settlements between the parties. The court had to balance the respective rights and interests of the Husband and the Wife in relation to the children and the distribution of their assets.

In its reasoning, the court considered various factors, including the best interests of the children, the parents' capacity to care for them, and the need for stability and continuity in their lives. The court determined that the children would live primarily with the Wife, with the Husband having specified visitation rights. The court also ordered a detailed schedule for the children's time with each parent, including weekends, holidays, and special occasions such as birthdays and public holidays. Furthermore, the court ordered that both parents have equal shared parental responsibility and that they maintain communication and cooperation regarding the children's welfare.

The court's final orders addressed both the children's care and the division of property. The court granted the Wife primary residence for the children but established a comprehensive schedule for the Husband's visitation. The court also ordered a property settlement, including a monetary payment from the Wife to the Husband and the transfer of property ownership. The orders further specified arrangements for communication between the parents and their involvement in the children's education and extracurricular activities. Additionally, the court set out provisions for spousal maintenance and the division of personal property and financial assets.

Orders

Orders of the court

That all previous orders are discharged.

Children

That the Husband and the Wife have equal shared parental responsibility for the children of the marriage namely [X] born [in] 2002 and [Y] born [in] 2004 (“the children”);

That the children live with the Wife commencing at the conclusion of school today 8 May 2009.

That the children spend time with the Husband:

(a) Each alternate weekend from 3.30 pm Friday until 9.00 am Monday commencing 15 May 2009;

(b) Each Wednesday from 3.30pm to 6.00pm with [X] commencing 13 May 2009;

(c)

Each Wednesday from 9.00 am to 6.00 pm with [Y] until

18 December 2009 and thereafter each Wednesday during term time from 3.30pm to 6.00 pm commencing 13 May 2009;

That the children spend time with the Husband each Father’s Day from 9.00am until 5.00 pm and with the Wife each Mother’s Day from 9.00am until 5.00pm.

Notwithstanding Order 4, that the children spend time with the Wife from 4.00pm Christmas Day 2009 until 4.00pm Boxing Day 2009 and with the Husband from 4.00pm Christmas Eve until 4.00pm Christmas Day, such time to alternate each alternate year thereafter.

Notwithstanding Order 4, the children spend time with the Husband on the children’s birthdays if they fall on a weekday from 3.30pm to 6.00pm and from 9.00am to 1.00pm if on a weekend if the birthdays fall on the Husband’s non contact time.

Notwithstanding Order 4, that the children spend time with the Wife on the children’s birthdays if they fall on a weekday from 3.30pm to 6.00pm and from 9.00am to 1.00pm if on a weekend if the birthdays fall during the period they are spending time with the Husband.

That the children spend one half of all school holidays including the long summer vacation with each of the Husband and the Wife such time to be divided on a week about basis, up to and including the long summer holiday of 2011 and increasing to two weeks taken consecutively thereafter.

10.

That the changeover occur at the school and kindergarten upon completion of attendance each Friday during school term and at the Wife’s residence during holidays.

11.

That the Husband and Wife each be at liberty to communicate with the children by telephone at all reasonable times, and the other parent shalt facilitate that telephone communication

12.

That both parents be noted as enrolling parents and emergency contacts at the children’s school, day-care and extracurricular activities.

13.

That the children’s school, day-care and other care providers are authorised to provide all information and documents about the children to both parents, including but not limited to the children’s progress, newsletters, reports.

14.

Both parents are at liberty to discuss matters relating to the children with the child’s school, teachers, principal, day care and other care providers.

15.

That either parent and the grandparents be at liberty to attend any significant (for example end of year, semester or term) school events, and any significant extracurricular or sporting events.

16.

That the parents notify each other within 24 hours of any change of address, email, or telephone number (including mobile phone).

17.

Each parent must advise the other of any significant illness, accident, or injury suffered by the child, any significant medical or dental treatment provided to a child, any medication a child is to take whilst a child is in the other’s care including the dosage and this Order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent.

18.

Save for preceding Orders when the parents are to communicate with the other by telephone for emergency or urgent situations, the parents must communicate with each other in relation to the children, by use of a communications book, to be exchanged at the time of changeovers.

Property

19.

That the Wife pay to the Husband the sum of $83,749 (“the payment within 60 days (“the date”).

20.

That upon the payment:

(a) The Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife, at the expense of the Wife, all of his right, title and interest in the real property situate at and known as Property S being the whole of the land more particularly described in Certificate of Title Volume [omitted] (“the real property”).

(b) The Wife indemnify the Husband against all payments and liability mortgage registered number [omitted] to the Australian and New Zealand Banking Group Ltd (“the mortgage”) and all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind and the Wife provide a discharge of mortgage at her expense on the date.

21.

That in the event of the payment not being made on or before the date the real property be sold altogether out of Court (“the sale”) and the parties do all acts and things and sign all necessary documents to effect a sale of the real property.

22.

Upon completion of the sale, the proceeds of the sale be applied as follows:

(a) Firstly, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the real property;

(b) Secondly, to discharge the mortgage and any other encumbrances affecting the real property;

(d) The balance to the Wife.

23.

That pending the payment or completion of the sale:

(a) The Wife have the sole right to occupy the real property. During such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

(b) The parties hold their respective interest in the real property upon trust pursuant to these Orders;

24.

That while the husband continues to receive the whole of the family tax benefit the Husband pay to the Wife by way of spousal maintenance the sum of $100 per week.

25.

That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Orders:

(a) Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as of the date of these Orders. All the chattels in the former matrimonial home are to be considered to be in the possession of the Wife.

(b) Monies standing to the credit of the parties in any bank account is to be deemed the property of the owner named therein;

(d) Each party foregoes any claim he or she may have to any superannuation benefits belonging to or earned by the other;

(e) 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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