FAMILY COURT OF AUSTRALIA
| Atwood & Atwood | [2019] FamCA 759 |
| FAMILY LAW – CHILDREN – Best interests – With whom the child lives – With whom the child spends time – Parental Responsibility – Where the father seeks sole parental responsibility, for the child to live with him and for the child to have no contact with the mother – Where the mother does not seek any orders relating to parental responsibility, time spent with the child nor any workable orders about the parent with whom the child will live – Where there are concerns about the mother’s mental health – Where the child was removed from the mother’s care by the Department of Family and Community Services – Court finds that the need to protect the child from harm outweighs the benefit of a meaningful relationship with his mother – Order made for the father to have sole parental responsibility, for the child to live with him and for the child to spend no time with the mother. FAMILY LAW – CHILD ABUSE – Where the child suffered neglect in the mother’s care. FAMILY LAW – FAMILY VIOLENCE – Court finds that the mother prevented the child from having contact with the father. FAMILY LAW – PROPERTY – Property settlement – Contributions – Adjustments – Where the father seeks the settlement be executed by way of superannuation splitting order using a base amount – Where the mother opposes the settlement occurring solely by way of superannuation splitting order – Where the majority of the property pool is held in superannuation and a controlled moneys account – Where the father seeks to be reimbursed for certain outgoings in relation to the former matrimonial home – Where no balance sheet was provided by the parties – Two pools approach – Adjustment of both pools in favour of the mother warranted by s 75(2) factors – Orders made for the father to be reimbursed for certain costs – Orders made for splitting of superannuation using a base amount and for the balance of the controlled moneys account to be distributed between the parties. |
| Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61B, 61DA, 65DAA, 65D, 65DAC, 75(2), 79, 90XT Australian Passports Act 2005 (Cth) s 11(1)(b) Federal Magistrates Court Rules 2001 (Cth) Family Law Rules 2004 (Cth) rr 6.08, 19.18 Family Law (Superannuation) Regulations 2001 (Cth) |
| Foster & Foster (2012) 47 Fam LR 77 In the Marriage of Lenehan (1987) FLC 91-814 In the Marriage of Norbis (1986) 161 CLR 513 In the Marriage of Shewring (1988) FLC 91-926 In the Marriage of Zyk (1995) FLC 92-644 L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Mr Atwood |
| RESPONDENT: | Ms Atwood |
| Independent children’s lawyer: | Legal Aid NSW |
| FILE NUMBER: | SYC | 3943 | of | 2014 |
| DATE DELIVERED: | 20 September 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
HEARING DATE: FINAL DATE FOR SUBMISSIONS: | 9, 10, 11 April, 13 August, 10… |
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- AGLC
- Atwood & Atwood [2019] FamCA 759
- Case
- [2019] FamCA 759
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining the best interests of the child, specifically with whom the child should live and whether there should be any contact with the mother, given concerns about the mother's mental health and prior removal of the child from her care by the Department of Family and Community Services. Additionally, the court was required to determine a property settlement, including the division of superannuation and funds held in a controlled moneys account, and to consider adjustments under section 75(2) of the Family Law Act 1975 (Cth).
The court found that the need to protect the child from harm outweighed the benefit of a meaningful relationship with the mother, particularly in light of findings of child neglect and the mother's prevention of contact with the father. Consequently, the court ordered that the father have sole parental responsibility, that the child live with him, and that the mother have no contact with or spend no time with the child. Regarding financial matters, the court ordered reimbursement to the father for certain outgoings, a split of the controlled moneys account, and a superannuation splitting order in favour of the mother.
Orders
Orders of the court
Parenting Orders
1.
B born … 2006 (“the child”) live with the father.
2.
Mr Atwood (“the father”) shall have sole parental responsibility for the child.
3.
Ms Atwood (“the mother”) have no contact with and spend no time with the child.
4.
Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the father be permitted to apply for the issue of an Australian travel document and the renewal of same for the child without the consent of the mother being obtained.
5.
The Australian passport issued to the child shall be provided to the father to hold on behalf of the child.
6.
The father be and is hereby permitted to remove the child from the Commonwealth of Australia for the purpose of taking the child on overseas holidays.
7.
As soon as practicable after the delivery of judgment in these proceedings the father is to cause the child to attend upon a family consultant, if convenient in the company of the Independent Children’s Lawyer for the purpose of the orders being explained to the child.
8.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Financial Orders
9.
The parents are declared to be entitled to the funds representing the net proceeds of sale of the property situate at M Street Suburb G, held in the controlled moneys account with the Commonwealth Bank of Australia in the proportions 36.9 per cent to the father and 63.1 per cent to the mother.
10.
The Court Noted that Legal Aid NSW claims a contribution of $7,824.25 from each of the parents in respect of the costs of the Independent Children’s Lawyer, unless those contributions have been waived.
11.
Immediately prior to any disbursement to the mother or the father from the controlled moneys account, the parties shall do all things and sign all documents necessary to cause $7,824.25 to be paid to Legal Aid NSW from each parent’s share of the controlled moneys account, provided that such a payment is not required if that parent has by the date of the proposed disbursement, received notice from Legal Aid NSW that his or her contribution to those costs has been waived.
12.
Subject to Order 11, the parties shall do all things and sign all documents necessary to cause the father’s share of the controlled moneys account to be paid to him as soon as practicable after the date of these orders.
13.
The mother shall pay to the solicitor for the father one half of the costs of the father of and incidental to these proceedings, such costs to be as agreed or as assessed by a Taxing Officer. Those costs shall be paid within seven days after the date of the agreement or assessment, as the case may be.
14.
Save for a payment from the mother’s entitlement to the controlled moneys account to meet her obligation under Order 13, there shall be no payment to the mother from that account unless and until the costs due under Order 13 have been paid.
15.
The parties shall do all things and sign all documents to cause, forthwith upon compliance with Order 13, any remaining funds in the controlled moneys account to be paid to the mother or as she may direct.
16.
Except as provided in these orders each of the parties shall retain ownership of any bank accounts, motor vehicles and other personalty in their current possession or control.
17.
Each of the parties shall continue to be solely responsible for any debts in their respective names.
18.
A splitting order in respect of the interest of the father in Super Fund 1 Personal Plan (“the Fund”) in the following terms to effect a split to the mother in an amount of $62,400.
(a) that Paragraphs (a) to (i) (inclusive) of these orders are binding on the Trustee of the Fund.
(b) that the base amount allocated to the mother out of the interest of the father in the Fund is $62,400.
(c) that pursuant to s 90XT(l)(a) of the Act, whenever a splittable payment becomes payable in respect of the interest of the said father in the Fund that the mother shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in any entitlement of the person to whom the splittable payment would have been made but for these orders.
(d) that Order (18)(c) has effect from the operative time.
(e) the operative time for the purpose of order (18)(d) of these orders is four business days after date of service of these Orders on the Trustee of the Fund.
(f) the mother shall within 14 days of becoming entitled to receive a superannuation benefit from the Fund, provide to the Fund all such forms as necessary to enable it to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require.
(g) that there be liberty to apply to each party and Trustee in relation to the implementation of these Orders effecting the Superannuation interest.
(h) that until such time as the Superannuation split to the mother pursuant to these Orders can be rolled over onto a separate account of the mother that:
(i) the father shall provide the mother no less than 28 days’ notice in writing before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accepts or becomes entitled to access in whole or in part his entitlement in the Fund.
(ii) the father shall direct and authorise the Trustee of the Fund to communicate with the mother and/or any person authorised by him in writing:
A. to answer any reasonable enquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Fund; and
B. to provide the mother and/or her authorised representative a copy of any notice of any application or request by the father which seeks release of entitlements in the Fund insofar as that release may effect the mother’s entitlement in the Fund pursuant to these Orders.
(iii) the father by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the mother or her nominees, to the extent permitted by law, from receiving the benefits in the Fund to which she is entitled to pursuant to these Orders.
(i) in the event that the Superannuation split to the mother pursuant to these Orders can be rolled over into a separate account to the mother each of the parties hereto shall each do such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
19.
The Court Noted that the trustee of Super Fund 1 has advised that in order to comply with relevant legislation, the mother must advise the trustee of her date of birth and residential address prior to these orders being served on the trustee.
20.
The Court Noted that the father agreed that he will make no claim in respect of the mother’s copyright in any future written works authored by her.
21.
Leave is granted to the parties to apply in relation to the wording of these orders within 28 days and on giving at least seven days’ notice to the Court and each other.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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