FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADRIANOS & PANOS | [2018] FCCA 2228 |
| Catchwords: FAMILY LAW – Property – date of cohabitation disputed – initial contributions – partial property settlement – add-backs sought – disputed contributions – superannuation split. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75, 79, 90SF |
| Cases cited: Bangi & Belov [2014] FamCA 8 McMahon & McMahon (1995) FLC ¶92-606 Pierce & Pierce (1999) FLC ¶92-844 |
| Applicant: | MR ADRIANOS |
| Respondent: | MS PANOS |
| File Number: | MLC 8074 of 2016 |
| Judgment of: | Judge Baker |
| Hearing dates: | 14, 15, 16 and 18 May 2018, 12 June 2018, 24 July 2018 |
| Date of Last Submission: | 24 July 2018 |
| Delivered at: | Hobart |
| Delivered on: | 21 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr MacFarlane of Counsel |
| Solicitors for the Applicant: | JH Legal Pty Ltd |
| Counsel for the Respondent: | Mr Mellas of Counsel |
| Solicitors for the Respondent: | Sayer Jones |
ORDERS
The mother have sole parental responsibility for the children [X] born 2008 and [Y] born 2011 (“the children”).
In exercising sole parental responsibility the mother will inform the father, as soon as is practical, of any major decisions made regarding the children’s health, welfare and/or education.
The children live with the mother.
The children spend time with the father as follows:
(a)Each alternate week from the conclusion of school on Wednesday (or 3.30pm if a non-school day) until Sunday 5.00pm.
(b)During one half of term school holidays, with the father to have the first half in even years and the second half in odd years.
(i)The time shall commence at the conclusion of school on the last day and conclude at 6:00 p.m. on the last day of the holiday period. The midpoint of the holiday period is 6:00 p.m. on the middle day of the holiday period.
(c)During one half of the long summer holidays, with the children to spend time:
(i)With the father in the first half and with the mother in the second half in all even numbered years; and
(ii)With the mother in the first half and the father in the second half in all odd numbered years.
(iii)For the avoidance of any doubt, the long summer holiday period commences at the conclusion of school on the last day of school term and concludes at 6.00pm on the last day of the holiday period. The midpoint of the long summer holiday period is…
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- AGLC
- ADRIANOS & PANOS [2018] FCCA 2228
- Case
- [2018] FCCA 2228
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether sole or equal shared parental responsibility was appropriate for the children, considering the parties' capacity for joint decision-making. Additionally, the court had to resolve disputes concerning the commencement date of cohabitation, the extent of initial contributions made by each party, and whether certain amounts should be added back to the asset pool for division. The court also had to make orders regarding the division of superannuation interests.
In relation to parenting, Judge Baker ordered that the mother have sole parental responsibility for the children, with the father to be informed of any major decisions regarding their health, welfare, and education. The children were ordered to live with the mother, and detailed provisions were made for the children to spend time with the father, including specific arrangements for school holidays, birthdays, and Christmas. The court also made orders regarding communication between the children and each parent, travel, and the parties' conduct in the presence of the children. For the property settlement, the court ordered the mother to pay the father a sum of $107,151 within 60 days. The parties were to retain their respective properties, bank accounts, motor vehicles, businesses, and chattels, with specific provisions for the withdrawal of caveats. The father was to indemnify the mother for his debts and liabilities, and the mother was to indemnify the father for hers. The court also ordered a superannuation split, allocating a base amount to the father from the mother's superannuation interest.
Orders
Orders of the court
1.
The mother have sole parental responsibility for the children [X] born 2008 and [Y] born 2011 (“the children”).
2.
In exercising sole parental responsibility the mother will inform the father, as soon as is practical, of any major decisions made regarding the children’s health, welfare and/or education.
3.
The children live with the mother.
4.
The children spend time with the father as follows:
(a) Each alternate week from the conclusion of school on Wednesday (or 3.30pm if a non-school day) until Sunday 5.00pm.
(b) During one half of term school holidays, with the father to have the first half in even years and the second half in odd years.
(i) The time shall commence at the conclusion of school on the last day and conclude at 6:00 p.m. on the last day of the holiday period. The midpoint of the holiday period is 6:00 p.m. on the middle day of the holiday period.
(c) During one half of the long summer holidays, with the children to spend time:
(i) With the father in the first half and with the mother in the second half in all even numbered years; and
(ii) With the mother in the first half and the father in the second half in all odd numbered years.
(iii) For the avoidance of any doubt, the long summer holiday period commences at the conclusion of school on the last day of school term and concludes at 6.00pm on the last day of the holiday period. The midpoint of the long summer holiday period is 6.00pm on the middle day of that period or if the parties cannot agree on which day that is 6.00pm on the 19th day of the holiday period. The usual cycle for care periods pursuant to order 4 (a) shall be suspended during the long summer holiday period and resume in accordance with the usual cycle as if the holiday period had not intervened.
(d) Over the Greek Easter weekend the children shall spend time:
(i) With the father from 9.00am Sunday until 9.00am Monday in 2019 and each alternate year thereafter and 9.00am Saturday until 9.00am Sunday in 2020 and each alternate year thereafter.
5.
The children’s time with the father be suspended on Mother’s Day weekend, such that they spend time with the mother from 5.00pm on the Saturday before Mother’s Day until 9.00am on the Monday following Mother’s Day.
6.
The children’s time with the mother be suspended on Father’s Day weekend, such that they spend time with the father from 5.00pm on the Saturday before Father’s Day until 9.00am on the Monday following Father’s Day.
7.
If the children’s birthdays fall on a day when in the mother’s care, the mother’s time be suspended and the children spend time with the father for not less than 3 hours at times to be agreed between the parties, and failing agreement, from 3.30pm until 6.30pm if a school day and from 10.00am until 1.00pm if a non-school day.
8.
If the children’s birthdays fall on a day they are in the father’s care, the father’s time be suspended, and the children spend time with the mother for not less than 3 hours at times to be agreed between the parties, and failing agreement, from 3.30pm until 6.30pm if a school day and from 10.00am until 1.00pm if a non-school day.
9.
The children’s time with the father be suspended and they remain in the mother’s care from 24 December until 26 December and the children spend time with the father over the Christmas period:
(a) From 5.00pm on Christmas Eve 2018 until 1.00pm on Christmas Day 2018 and each alternate year thereafter; and
(b) From 1.00pm Christmas Day 2019 until 10.00am Boxing Day 2019 and each alternate year thereafter.
10.
The parties shall agree to any other arrangements for the children’s care from time to time in writing.
11.
In the event that the father is unwilling or cannot care for the children overnight, he shall give the mother first option to care for the children for that period of time.
12.
In the event the mother is unwilling or cannot care for the children overnight, she shall give the father first option to care for the children for that period of time.
13.
Unless otherwise provided for in these orders or as otherwise agreed, all changeovers not occurring at the children’s schools shall take place as follows:
(a) At the commencement of the children’s time with the father, the father shall collect the children from the mother’s home; and
(b) At the conclusion of the children’s time with the father, the mother shall collect the children from the father’s home.
14.
The children communicate with the father by telephone or electronic device such as FaceTime or video conference, between 6.30 and 7.30pm every Monday, Wednesday and Saturday when they are not in his care.
15.
During term time, the children communicate with the mother by telephone or electronic device such as FaceTime or video conference, between 6.30 and 7.30 pm on Friday when not in her care, and during school holiday time every Monday, Wednesday and Saturday between 6.30pm and 7.30pm.
16.
For the purpose of telephone and electronic communications, the other parent shall ensure that the children or either one of them are afforded privacy and that any mobile or electronic device used for such communication is fully charged and switched on.
17.
The parties communicate directly by text message or email (or in urgent circumstances by telephone) in relation to any issues concerning the care and welfare of the children.
18.
Insofar as reasonably practicable, the parties shall make reasonable efforts to ensure the children attend their agreed extra-curricular activities on times and days when the children or either of them is in that party’s care.
19.
The parties each be at liberty to:
(a) Liaise with any medical, educational or other professionals involved with the children and obtain all information and documents ordinarily make available to parents; and
(b) Attend all significant medical, educational and other appointments and events concerning the children at which parents are ordinarily in attendance with no less than 24 hours’ notice to be provided where the parent without the care of the children intends to attend.
20.
The parties keep each other informed of:
(a) All significant medical issues concerning the children and any appointments relating to same; and
(b) Any significant injury suffered by the children whilst in their care.
21.
Each party shall ensure the other party is kept advised of their current residential address and phone number and notify the other party in writing of any respective changes to them within 7 days of such change taking effect.
22.
Each party shall sign all necessary documents and to all other things as may be required for the children to be issued Australian passports and they shall be kept current and the expenses for doing so are to be shared equally.
23.
The passports issued in the names of the children shall be retained by the mother.
24.
The parties shall not remove the children from the State of Victoria or the Commonwealth of Australia unless they have:
(a) Provided the other parent with 14 days written notice for travel within Australia and 30 days for overseas travel, including flight itineraries and all accommodation details, including telephone numbers and websites where available; and
(b) The other parent has provided their written consent to the travel, with such consent not to be unreasonably withheld.
25.
The mother to provide to provide to the father the passports of the children 14 days prior to the travel and the father to return to the mother the children’s passports within 14 days after travel.
26.
Both parties be and are hereby restrained from:
(a) Discussing these proceedings with or in the presence of the children or each of them;
(b) Discussing parenting issues in dispute with or in the presence of the children or each of them; and/or
(c) Denigrating the other parent in the presence of the children or each of them.
27.
Both parties:
(a) Attend and complete, as soon as practicable, a Post Separation Parenting Program.
(b) Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.
(c) Pay and otherwise be responsible for all costs associated with the program.
(d) Provide evidence to the other party’s solicitor that they have enrolled in the program.
(e) Provide evidence to the other party’s solicitor that they have successfully completed the program.
PROPERTY ORDERS
28.
Within 28 days the parties do all such acts and things and sign all necessary documents for the funds held in [A] and [B] trust account to be paid to the Father.
29.
Within 60 days, the Mother shall pay the Father the sum of $107,151.
30.
the father shall retain all of his right, title and interest in the following to the exclusion of the mother:
(a) the property known as an situated at Property A and any liability attached thereto;
(b) any funds in bank accounts in his name;
(c) his interest in the Adrianos Family Trust;
(d) his Motor Vehicle 1;
(e) his businesses including but not limited to Mr Adrianos (Sole trader) and Business 1 and any liabilities attached thereto;
(f) any chattels in his possession.
31.
The mother shall retain all of her right title and interest in the following to the exclusion of the father:
(a) the property known as and situated at Property B and any liability attached thereto in the father shall, at his expense, sign all documents and do all necessary things to withdraw the caveat secured against the property within 28 days;
(b) the property known as and situated at Property C and any liability attached thereto, and the father shall, at his expense, sign all documents and do all necessary things withdraw the caveat secured against the property within 28 days;
(c) any funds in bank accounts in her name;
(d) her Motor Vehicle 2 and any liability attached thereto;
(e) her Motor Vehicle 3 and any liability attached thereto;
(f) any chattels in her possession.
32.
The father shall indemnify the mother in respect of all debts, liabilities, interest, costs or outgoings in relation to any of his creditors, and/or his related entities, any and all of his borrowings and/ or those of his related entities, and any and all of his taxation liabilities and/or his related entities.
33.
The mother shall indemnify the father in respect of all debts, liabilities, interest, costs or outgoings in relation to any of her creditors and/or her related entities, any and all of her borrowings and/ or her related entities, and any and all of her taxation liabilities and/ or those of her related entities.
34.
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 other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.
(c) Insurance policies remain the sole property of the owner/beneficiary named thereon;
(d) 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.
35.
The base amount of $25,916 be allocated to the Father out of the interest of the Mother, being Member No: in the Super Fund K (“the Fund”), with the Trustee of the Fund being Australian Financial Service Licence (“the Trustee”).
36.
This order is binding on the Trustee.
37.
Pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by the Mother in the Fund:
(a) The Father is entitled to be paid, and the Trustee of the Fund shall pay him, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(b) There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders;
(c) This Order has effect from the operative time;
(d) The operative time for the purpose of these Orders is the fourth business day after the date of serve of a sealed copy of these Orders on the Trustee of the Fund; and
(e) The Mother be hereby restrained by herself, her servants, or agents from executing and/or giving to the Trustee of the Fund, a binding death nomination in favour of any person, doing any such act or thing, which would render any part, or payment from, her superannuation interest in the fund a ‘non-splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 such as would defeat the Mother’s entitlement, pursuant to this Order.
(f) The Father, the Mother and the Trustee of the Fund have liberty to apply in relation to the implementation of the Orders insofar as they relate to superannuation.
(g) That, after service of the payment split notice pursuant to regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Father shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising his request pursuant to regulation 7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the creation of a new interest in his name in the Fund;
(h) The Court notes:
(i) The value of the transferable benefits to be transferred from the Mother’s interest to the Father will be calculated by the Trustee in accordance with Regulation 7A.11 of the Superannuation Industry (Supervision) Regulations 1994; and
(ii) Pursuant to regulation 14F of the Family Law (Superannuation) Regulations 2001, any payments from the Mother’s superannuation interest in the Fund made after the Trustee has created a new interest in the Father’s name in the Fund, as contemplated by paragraph 3 (g) of these Orders, are not splittable payments.
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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