FAMILY COURT OF AUSTRALIA
WOODBINE & WOODBINE [2010] FamCA 339
FAMILY LAW – CHILDREN – parental responsibility – best interests – where it has been determined that an equal shared parenting arrangement is to continue – equal shared care and equal shared parental responsibility proven to be successful in the past – orders for parties to have equal shared parental responsibility
FAMILY LAW – CHILDREN – with whom a child spends time – best interests – issue as to the ability of parties to communicate effectively – not satisfied upon the evidence that the parents cannot communicate effectively about matters relating to the children – consideration of the impact of mother’s proposal for change of care – mother proposes children move to school where she teaches – effect on father’s ability to participate in schooling – where evidence that child is sensitive to change – unjustified risks associated with changes promoted by the mother – orders made for equal time with each parent and for children to remain at current school
FAMILY LAW – PROPERTY SETTLEMENT – dispute as to liability of interest on loan from father’s parents – not satisfied on evidence that mother was a party to any agreement to pay interest – inappropriate to declare interest a joint liability – consideration of father’s superior financial contribution – contributions assessed as 57.5%/42.5% in favour of the father – further adjustment of 7.5% in favour of the mother upon consideration of 75(2) factors – asset pool divided equally
Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAA & 75(2)
O’Loughlin and O’Loughlin (No. 2) [2007] FamCA 1546
Baker and Parker-Lesley [2008] FamCA 1002
Re G: Children’s Schooling (2000) FLC 93-025
Kirkland and Granger [2007] FamCA 1471
Raymond and Harold [2009] FamCA 155Jennifer McIntosh and Richard Chisholm, ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research’ (2008) 20 (1) Australian Family Lawyer 1, 9.
APPLICANT: Ms Woodbine
RESPONDENT: Mr Woodbine
INDEPENDENT CHILDREN’S LAWYER: J Richard Croft
FILE NUMBER: ADC 528 of 2007
DATE DELIVERED: 23 April 2010
PLACE DELIVERED: Adelaide
PLACE HEARD: Adelaide
JUDGMENT OF: BURR J
HEARING DATE: 12 August & 19 November 2008, 6, 18 & 24 February 2009, 9, 10, 29 & 30 June 2009, 25, 26 & 27 November 2009, 4 December 2009 REPRESENTATION
COUNSEL FOR THE APPLICANT: MR BERMAN
SOLICITOR FOR THE APPLICANT: BARNES BRINSLEY SHAW LAWYERS
COUNSEL FOR THE RESPONDENT: MR McQUADE
SOLICITOR FOR THE RESPONDENT: ADEY LAWYERS COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
MS ROSS
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J RICHARD CROFT Orders
1.That all current previous parenting orders in relation to the children C born … July 2002 and K born … May 2004 be discharged.
2.That the parties have equal shared parental responsibility for the said children.
3.That save as otherwise specified in these Orders C live with:-
(a)the father:-
(i)on a two weekly cycle as follows:-
(A)in week one, from 5.00 pm on Thursday until 5.00 pm on Monday and each…
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- Case
- [2010] FamCA 339
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children, specifically regarding their living arrangements and parental responsibility, and whether the mother's proposed change of school for the children was appropriate. Additionally, the court needed to resolve a dispute concerning the liability for interest on a loan from the father's parents and to make a final division of the parties' property pool.
In relation to parenting, the court found that the existing equal shared care arrangement had been successful and that the parents were capable of communicating effectively. The court was not satisfied that the mother's proposal to move the children to the school where she teaches was in their best interests, noting the potential negative impact on the father's involvement in their schooling and the children's sensitivity to change. Consequently, the court ordered equal shared parental responsibility and a continuation of equal time with each parent, with the children remaining at their current school. Regarding property, the court found insufficient evidence that the mother had agreed to pay interest on the loan from the father's parents, deeming it inappropriate to declare this a joint liability. After considering the father's superior financial contributions, the asset pool was divided equally, with a further adjustment in favour of the mother under section 75(2) of the *Family Law Act 1975* (Cth). The court ordered the father to pay the mother a sum of $333,404 and detailed the division of various assets and liabilities between the parties.
Orders
Orders of the court
1. That all current previous parenting orders in relation to the children C born … July 2002 and K born … May 2004 be discharged.
2. That the parties have equal shared parental responsibility for the said children.
3. That save as otherwise specified in these Orders C live with:-
(a) the father:-
(i) on a two weekly cycle as follows:-
(A) in week one, from 5.00 pm on Thursday until 5.00 pm on Monday and each alternate week thereafter;
(B) in week two, from 5.00 pm on Tuesday until 5.00 pm on Friday and each alternate week thereafter;
(ii) for one half of all short end of term school holiday periods, or at such other times as may be agreed between the parties;
(iii) for one half of all Christmas school holiday periods at times as may be agreed between the parties or in default of agreement, on an alternating weekly cycle;
(b) with the mother at all other times.
4. That notwithstanding paragraph 3 of these Orders, C and K live with the father and the mother as follows:-
(a) Each Easter:-
(i) with the father from 5.00 pm on Easter Thursday until 5.00 pm on Easter Monday commencing in 2011 and each alternate year thereafter; and
(ii) with the mother from 5.00 pm on Easter Thursday until 5.00 pm on Easter Monday commencing in 2012 and each alternate year thereafter
upon noting that in the event that Easter forms part of the April school holiday period then this order overrides and determines the children’s living arrangements during such April school holiday period.
(b) with the father from 10.00 am until 5.00 pm on Father’s Day;
(c) with the mother from 10.00 am until 5.00 pm on Mother’s Day;
(d) with the father from 3.00 pm on 24 December 2010 until 3.00 pm on 25 December 2010 and each alternate year thereafter and in each intervening year from 3.00 pm on 25 December until 3.00 pm on 26 December;
(e) with the mother from 3.00 pm on 25 December 2010 until 3.00 pm on 26 December 2010 and each alternate year thereafter and in each intervening year from 3.00 pm on 24 December until 3.00 pm on 25 December;
(f) with the father from 5.00 pm on 31 December 2010 until 5.00 pm on 1 January 2011 and each alternate year thereafter;
(g) with the mother from 5.00 pm on 31 December 2011 until 5.00 pm on 1 January 2012 and each alternate year thereafter;
(h) with each parent on the respective birthdays of the children noting that:-
(i) if the children’s birthdays fall on a weekend or during school holiday periods then the parent who does not otherwise have the care of the children on that day is to spend not less than four [4] hours with the children at such times as may be agreed;
(ii) if the children’s birthdays fall on a school day then the parent who does not otherwise have the care of the children is to spend two [2] hours with the children at such times as may be agreed;
(i) with each parent on the respective birthdays of the father and the mother noting that:-
(i) if the parent’s birthday falls on a weekend or during school holiday periods then the parent who has their birthday on that day is to spend not less than four [4] hours with the children at such times as may be agreed;
(ii) if the parent’s birthday falls on a school day then the parent who does not otherwise have the care of the children is to spend two [2] hours with the children at such times as may be agreed.
5. That the two weekly cycle identified in paragraph 3 of these Orders be suspended during school holiday periods and recommence in the first week of the new school term.
6. That the father collect the children from the mother’s home at the commencement of his periods to be spent with the children and the mother collect the children from the father’s home at the commencement of her periods to be spent with the children.
7. That C and K attend the S Primary School.
8. That the parties share equally the children’s school fees, cost of swimming lessons and other expenses associated with the children’s extra curricular activities and private health cover (including the gap).
9. That the parties do each authorise the children’s school to provide the other parent with copies of all newsletters, school reports, school photographs and the like and that each party be entitled to attend any function at which parents are normally entitled to attend.
10. That each party do:-
(a) facilitate the attendance of the children at any extra-curricular activity and special events offered by their school provided that each party do attain the agreement of the other prior to enrolling the children in any extra-curricular school activity;
(b) keep the other party informed as to any accident or illness of the said children and do inform the other within twenty-four [24] hours of the time and place of medical consultations arranged and the name of all medical practitioners involved in the care of the children and that each party be entitled to attend at all specialist medical appointments and to obtain from such specialist a written report at their sole cost;
(c) keep the other informed at all times of their mobile telephone number, landline telephone number, email address, residential address and any address of his / her place of employment.
11. That in the event that the children (or either of them) are away or to be away from their normal residential address for a period in excess of forty-eight [48] hours then the party who has the care of the children do inform the other party of their proposed address and contact details during such period no later than three [3] days prior to departure.
12. That the parties do utilise a communication book to record issues concerning the care, welfare and development of the said children, with such communication book to be exchanged at handovers.
13. That each party is restrained and an injunction is hereby granted restraining each of them from denigrating the other to or in the presence of the said children or within their hearing and from permitting any other person to do so.
14. That the appointment of the Independent Children’s Lawyer be discharged.
15. That in full and final settlement of all claims that either party may have against the other by way of settlement of property or variation of settlement of property:-
(a) within thirty [30] days of the date hereof the father do pay or cause to be paid to Barnes Brinsley Shaw Trust Account for and on behalf of the mother the sum of THREE HUNDRED AND THIRTY THREE THOUSAND FOUR HUNDRED AND FOUR DOLLARS [$333,404];
(b) the father’s estate and interest (if any) both at law and in equity in the following be and the same is hereby vested in the mother:-
(i) the mother’s personal effects, clothing and jewellery;
(ii) the furniture and household effects in the mother’s possession;
(iii) the mother’s 50% interest in the property at G;
(iv) the mother’s ING savings account;
(v) the mother’s Holden Commodore VN motor vehicle;
(vi) the mother’s N Staff Super Fund – Accumulation Interest.
(c) the mother’s estate and interest (if any) both at law and in equity in the following be and the same is hereby vested in the father:-
(i) the father’s personal effects, clothing and jewellery;
(ii) the furniture and household effects in the father’s possession;
(iii) the former matrimonial home property at M (“the M property”);
(iv) the Savings and Loans Credit Union account in the joint names of the parties;
(v) the father’s Toyota 4 runner motor vehicle;
(vi) the father’s Super SA, State Lump Sum Scheme – Defined Benefit Scheme;
(vii) the father’s Statewide Super Trust –Accumulation Interest.
(d) the father do pay or cause to be paid to the exoneration of the mother:-
(i) all mortgage and loan instalments (if any), rates and taxes and other outgoings in relation to the M property;
(ii) the liability to the father’s parents
and do indemnify the mother against any liability in relation to any such payments;
(e) The mother do pay or cause to be paid to the exoneration of the father all mortgage and loan instalments (if any), rates and taxes and other outgoings in relation to the B property and do indemnify the father against any liability in relation to any such payments.
(f) Henceforth each party shall discharge without calling upon the other to contribute thereto the debts and liabilities contracted by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.
(g) Each party do all such acts and things and sign all such documents as are necessary to give effect to the terms of these Orders, with the costs associated with the transfer of any property to be met by the transferee provided that if the parties or either of them shall refuse or neglect to execute such documentation pursuant to the terms of these Orders within seven [7] days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose then and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
(h) In the event that the father defaults in payment of the sum or any part thereof mentioned in paragraph 15(a) of these Orders then and in such event the father do pay to the mother interest thereon at the rate prescribed at the time by the Family Law Rules AND FURTHER that the M property be sold and the net proceeds of sale applied in the manner following:-
(i) to the mother the sum of $333,404 or such balance as then remains due and outstanding together with interest thereon at the aforesaid rate calculated from the said due date for payment to the date of payment to the mother of the said sum or such balance as at that time shall remain due and outstanding to the mother; and
(ii) to the father the balance thereof.
16. That all applications be otherwise removed from the pending list.
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