PARENTS SEEKS COURT DETERMINATION ON WHEN THE NEW EQUAL TIME REGIME SHOULD COMMENCE AND WHO SHOULD RETAIN THE MATRIMONIAL HOME
Anmar & Demerly [2020] FCCA 2645 (25 September 2020)
This case involves the parent of a child agreeing on a new equal time regime but not on when it should commence. They also seek the court’s determination on who should retain the matrimonial home
Facts:
In relation to parenting orders, the children are currently spending equal time with each parent on the basis of a 2:2:5:5 fortnightly regime. Both parents seek that an equal time regime continue. The issue is when a reconfigured regime of the time in the form of a week about structure should commence. The mother contends that it should be at the beginning of the 2022 school year. The father says it should be 12 months before that.
The father’s proposal would see the children move into a week about living arrangement when Y is just shy of 7 years old and X is just shy of 9 years old. On the mother’s proposal Y would be nearly 8 years old and X almost 10 years ol
The mother’s case is that the children have experienced significant changes in their care arrangements since separation and that the children will have experienced the 5:2 arrangement for over 3 years and be better able to adjust to an arrangement whereby they will not see one of their parents for seven consecutive nights each week. The father’s case, on the other hand is that the children will have been in an equal time arrangement for over three years and there are already arrangements in place for the children to spend week about time during school holidays so the children have experienced week about time with him during school holidays;
Also, In relation to property, parties seeks court’s determination as to who retains the matrimonial home.
Issue:
- Should the new equal time regime commence at 2021 or 2022?
- Who retain the matrimonial home?
Law:
Analysis:
The court prefers the proposal of the mother. The benefit of the proposal of the mother is that it affords the children, still young, more time to settle before they move to the week about regime. The proposal of the mother presents less risk for the children in coping with a new arrangement, for parents who have co-parenting issues. It is a proposal as the court noted that better accords with the recommendation of the independent court expert.
As to the determination on who retains the family home, The home is already registered in the sole name of the wife and the wife has the capacity to retain the home given the financial assistance available to her.
Whilst the court acknowledges the husband’s emotional attachment to the home, he has no greater claim to it than the wife. Relevantly he does not provide the court with persuasive evidence that he has the capacity to acquire her interest in the property as assessed and service his liabilities even with a greater focus on his business. As such, there is no utility in an order permitting the husband to buy the property from the wife or affording him time to do so.
The court also considers the fact that the parties have been in significant dispute since their separation, not only in this venue. In proceedings under Part VIII of the Act the court is required as far as practicable to make orders that will finally determine the financial relationship between the parties and avoid further proceedings between them (s.81). That outcome is more likely to be achieved by an order that the wife retain the G Street, Suburb H home and pay out the husband
Conclusion: The new equal time regime should commence at 2022 and the mother shall retain the matrimonial home.
