WILSON & WILSON - [2012] FMCAfam 313

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILSON & WILSON

[2012] FMCAfam 313

FAMILY LAW – Parenting – Mother’s application to relocate to Newcastle – best interests of the child.

FAMILY LAW – Property – Husband with significantly greater income – adjustment under s.75(2) to wife.

Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4), 75(2)

MRR v GRR 240 CLR 461
Pierce & Pierce [1998] FamCA 74
Hickey v Hickey (2003) FLC 93-143
D & D (2006) FLC 93-256
Teal v Teal (2010) FamCAFC 120
Adams v Randall (2011) FLC 93-482
Goode v Goode (2006) FamCA 1346
Mazorski v Albright (2007) 37 Fam LR 518
McCall and Clark (2009) FamCAFC 92

Applicant:

MS WILSON

Respondent:

MR WILSON

File Number:

PAC 1167 of 2011

Judgment of:

Henderson FM

Hearing dates:

6, 7 & 8 February 2012

Date of Last Submission:

8 February 2012

Delivered at:

Parramatta

Delivered on:

5 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

ETHERINGTONS SOLICITORS

Counsel for the Respondent:

Mr Livingstone

Solicitors for the Respondent:

CLIVE MILLS & ASSOCIATES

ORDERS

Parenting

That the child [X] born [in] 2001 live with his mother.
That the parents have equal shared parental responsibility for the child.
That the mother be permitted to remove the child’s permanent place of residence, from Sydney to Newcastle.
The mother is to notify the father 30 days prior to the move to Newcastle, of the residential address at which she and the child will be living, her telephone contact details, the school at which the child will be enrolled, the name of the Principal and the name of the child’s teacher.
Thereafter the father be permitted to attend the child’s school, contact the school and make such inquiries at the school concerning his son’s education as he deems appropriate.
The mother to forthwith inform the father of the child’s paediatrician in Newcastle and any other health professional he is to attend and the father thereafter is permitted to contact the child’s health professionals to obtain information about his son’s treatment and ongoing prognosis.
The child spend time with his father as follows:
(a)Each alternate weekend in Sydney, with the parents to meet after school at [T] on Friday and on Sunday at times as agreed and failing agreement at 6.00pm Friday and 6.00pm Sunday;
(b)On one additional weekend each calendar month in Newcastle as agreed and failing agreement the second weekend of the month. The child to spend time with the father on those weekends from after school Thursday to the commencement of school Monday morning or such other times as agreed;
(c)For one half of each school holidays as agreed between the parties; and
(d)At other times as agreed.
Upon the father determining to exercise his rights under order 7(b) herein he is to give the mother details of where he will be staying in Newcastle with the child and his telephone contact details 14 days before his time is to commence;
In the event that the father does…

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 WILSON & WILSON

Details

AGLC: WILSON & WILSON [2012] FMCAfam 313
Case: [2012] FMCAfam 313
Decision Date: 5 April 2012

CaseChat Overview and Summary

In the case of Wilson & Wilson, the mother applied to relocate to Newcastle with their child, [X], while the father contested this move and sought adjustments to the property settlement. The Family Court of Australia was tasked with resolving these issues. The legal issues included determining the best interests of the child concerning the relocation and whether to adjust the property settlement in favor of the wife, given the husband's significantly greater income.

The court considered the mother's application to relocate to Newcastle, weighing the benefits of the move against the potential disruption to the child's routine and relationship with the father. The court concluded that the move was in the child's best interests, provided certain conditions were met to ensure continued contact and information sharing between the father and the child. The court ordered that the child live with the mother, with specific arrangements for visitation and communication with the father. Regarding the property settlement, the court found that an adjustment was necessary due to the husband's significantly higher income, resulting in the wife receiving a larger portion of the net proceeds from the sale of the former matrimonial home.

The court's reasoning emphasized the paramountcy of the child's best interests, ensuring that the relocation would not adversely affect the child's relationship with both parents. The property adjustment was deemed necessary to achieve a more equitable division of the assets given the disparity in the parties' incomes. The orders reflect a balanced approach, prioritizing the child's welfare and ensuring both parents have meaningful involvement in the child's life, while also addressing the financial implications of the separation.

Orders

Orders of the court

Parenting

That the child [X] born [in] 2001 live with his mother.

That the parents have equal shared parental responsibility for the child.

That the mother be permitted to remove the child’s permanent place of residence, from Sydney to Newcastle.

The mother is to notify the father 30 days prior to the move to Newcastle, of the residential address at which she and the child will be living, her telephone contact details, the school at which the child will be enrolled, the name of the Principal and the name of the child’s teacher.

Thereafter the father be permitted to attend the child’s school, contact the school and make such inquiries at the school concerning his son’s education as he deems appropriate.

The mother to forthwith inform the father of the child’s paediatrician in Newcastle and any other health professional he is to attend and the father thereafter is permitted to contact the child’s health professionals to obtain information about his son’s treatment and ongoing prognosis.

The child spend time with his father as follows:

(a) Each alternate weekend in Sydney, with the parents to meet after school at [T] on Friday and on Sunday at times as agreed and failing agreement at 6.00pm Friday and 6.00pm Sunday;

(b) On one additional weekend each calendar month in Newcastle as agreed and failing agreement the second weekend of the month. The child to spend time with the father on those weekends from after school Thursday to the commencement of school Monday morning or such other times as agreed;

(d) At other times as agreed.

Upon the father determining to exercise his rights under order 7(b) herein he is to give the mother details of where he will be staying in Newcastle with the child and his telephone contact details 14 days before his time is to commence;

In the event that the father does not take exercise his rights under order 7(b) within two months of the child moving to Newcastle, order 7(b) is discharged.

10.

The mother is permitted to remove the child from the Commonwealth of Australia for a trip to the Netherlands at the end of the 2012 school year provided she:

(a) Advises the father of the travel itinerary in writing;

(b) Provides the father with a copy of the return air tickets;

(c) Provides the father with a telephone number or other electronic means of communication with the child whilst overseas; and

(d) Ensures the child contacts his father by telephone or other electronic means no less than 3 times each week.

Property

11.

The parties to place the former matrimonial home on the market for sale at a sale price as agreed or failing agreement at $1,150,000 with an agent as agreed by way of private treaty or as otherwise agreed.

12.

Upon settlement of the sale the proceeds to be applied as follows:

(a) To discharge the then current mortgage;

(b) Payment of agent’s commission;

(d) The wife to receive 87% of the net proceeds of sale and the husband the remainder.

13.

Thereafter the parties to be otherwise entitled absolutely to all assets in their name, including but not limited to superannuation, motor vehicles, bank accounts, furniture and the like.

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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