FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bannerman & Bannerman (No 4) [2024] FedCFamC2F 1865
File number(s): MLC 3796 of 2022 Judgment of: JUDGE GLASS Date of judgment: 23 December 2024 Catchwords: FAMILY LAW – PARENTING – where the mother has neglected the child - where the child’s views are given reduced weight in circumstances where the child has been significantly influenced by the mother – where it remains in the child’s best interests not to spend time with the mother - where the father will continue to have sole parental responsibility
FAMILY LAW – PROPERTY – where the matter proceeded on the husband’s evidence – where there is to be a 55/45 non-superannuation asset split in favour of the husband – where there is an equal superannuation split – where joint proprietorships are severed - where proceeds of sale of a property go to the wife and a property be transferred to the husband
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DAA, 75, 79, 90XT, 102NA, 117
Family Law (Superannuation) Regulations 2001 (Cth) pt 6, reg 13
Cases cited: Agambar& Agambar (2014) FLC 94-049
Anson & Meek (2017) FLC 93-816
Bain & Bain (deceased) (2017) FLC 93-772
IMM & The Queen (2016) 257 CLR 300
Preston & Preston (2022) FLC 94-108
Stanford v Stanford (2012) 247 CLR 108
Taffner & Taffner (2021) FLC 94-022
Yavuz & Yavuz & Anor (2017) FLC 93-771
Division: Division 2 Family Law Number of paragraphs: 129 Date of hearing: 3-5 June and 18 December 2024 Place: Melbourne Counsel for the Applicant: Mr Lovering Solicitor for the Applicant: J S Law The Respondent: Appearing on her own behalf Counsel for the Independent Children's Lawyer: Ms Tiernan Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 3796 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BANNERMAN
Applicant
AND: MS BANNERMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
Parenting
1.The Applicant Father have sole parental responsibility in relation to the child X born in 2008.
2.The child live with the Applicant Father.
3.The Respondent Mother spend no time with the child.
Property
4.The Applicant be forthwith appointed as the Trustee for the sale of the real property situate at and known as M Street, Town E in the State of Victoria and more particularly described in Certificate of Title Volume … Folio … and Volume … Folio … (the "M Street property") and he shall place the real property on the market for sale ("the sale") in the following terms and conditions:
(a)the Applicant shall nominate a real estate agent within seven days of the date of these Orders and provide the details of the agent to the Respondent;
(b)the method of sale be by public auction or as otherwise recommended by the agent;
(c)the reserve price be as reasonably recommended by the agent;
(d)the contract of sale be an unconditional contract…
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- Bannerman & Bannerman (No 4) [2024] FedCFamC2F 1865
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- [2024] FedCFamC2F 1865
- Decision Date
CaseChat Overview and Summary
Judge Glass concluded that it was not in the child's best interests for the mother to have any contact with the child due to her significant influence on the child, which had led to neglect. Consequently, the court granted the father sole parental responsibility and ordered that the child live with him, with no contact with the mother. Regarding the property division, the court found that the husband's evidence was more reliable, resulting in a 55/45 non-superannuation asset split in his favor. Superannuation was divided equally, and the court also ordered the sale of a jointly owned property, with proceeds going to the wife, while another property was to be transferred to the husband. The court appointed the husband as the trustee for the sale of the property and outlined specific terms and conditions for the sale.
In summary, the court's decision awarded sole parental responsibility to the father, prohibited the mother from having any contact with the child, and divided the couple's assets and financial interests as outlined in the orders. The final orders included detailed instructions for the sale of one property, the transfer of another, and the division of superannuation and other assets.
Orders
Orders of the court
MLC 3796 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR BANNERMAN
Applicant
AND:
MS BANNERMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
Parenting
1. The Applicant Father have sole parental responsibility in relation to the child X born in 2008.
2. The child live with the Applicant Father.
3. The Respondent Mother spend no time with the child.
Property
4. The Applicant be forthwith appointed as the Trustee for the sale of the real property situate at and known as M Street, Town E in the State of Victoria and more particularly described in Certificate of Title Volume … Folio … and Volume … Folio … (the "M Street property") and he shall place the real property on the market for sale ("the sale") in the following terms and conditions:
(a) the Applicant shall nominate a real estate agent within seven days of the date of these Orders and provide the details of the agent to the Respondent;
(b) the method of sale be by public auction or as otherwise recommended by the agent;
(c) the reserve price be as reasonably recommended by the agent;
(d) the contract of sale be an unconditional contract of sale providing for a settlement period of not more than 90 days;
(e) the Applicant nominate a conveyancer within seven days of the date of these Orders and provide details of the agent to the Respondent;
(f) the Applicant is authorised to, and is appointed the agent of the Respondent, to execute all documents on behalf of the Respondent as may be required to comply with the sale, including but not limited to all sales authorities, PEXA authorities, a Contract of Sale, a Transfer of Land, a Discharge of Mortgage and such like forms;
(g) for the purposes of any PEXA transaction to give effect to these Orders, the Applicant be appointed as the attorney for the Respondent including but not limited to providing verification of identity on her behalf; and
(h) the Applicant shall keep the Respondent advised of all decisions made in relation to the sale of the M Street property.
5. On settlement of the sale of the M Street property the proceeds be applied as follows:
(a) first to pay all costs, commissions and expenses of the sale, including the reasonable costs of the conveyance;
(b) second, to discharge the joint Commonwealth Bank Mortgage (Mortgage No. …) secured against the M Street property and the real property situate at and known as B Street, Town E in the State of Victoria and more particularly described in Certificate of Title Volume … Folio … (the "B Street property");
(c) third, to discharge any Capital Gains Tax liabilities;
(d) fourth, any amounts required to discharge the following caveats lodged against the M Street property:
(i) Caveat lodged by N Law Firm (Caveat No. …); and
(ii) Caveat lodged by O Law Firm (Caveat No. …); and
(e) fifth, the balance then remaining to the Respondent.
6. Within 90 days of the settlement of the sale of the M Street property, the Applicant pay to the Respondent the sum of $X to be calculated in accordance with the following formula:
$X = [(A + $569,483) × 45%] - A - $56,280 - $14,172.12
Where:
A is the balance remaining after compliance with paragraphs 5(a), (b) and (c) of these Orders;
$569,483 is the total value of the non-superannuation property interests of the parties as found excluding the value of the M Street property and loan to be discharged upon its sale;
$56,280 is the total value of the non-superannuation property interests to be otherwise retained by the Respondent; and
$14,172.12 is the total value of prior costs Orders payable by the Respondent to the Applicant.
7. Pending the sale and settlement of the M Street property:
(a) the Applicant shall have the sole right to occupy the M Street property;
(b) the Applicant and Respondent hold their respective interest in the real property upon trust pursuant to these Orders;
(c) neither the Applicant or Respondent shall further encumber the M Street property without the consent in writing of the other party; and
(d) each of the Applicant and Respondent will cause to be repaired any damage to the M Street property caused by them, such repair to be at such party's own expense.
8. That contemporaneously with Order 5, the Applicant be appointed as the Trustee in order to do all acts and sign all documents as are necessary to transfer to the Applicant at the expense of the Applicant all of the Respondent's right, title and interest in the B Street property.
9. The Applicant is authorised to, and is appointed the agent of the Respondent, to execute all documents on behalf of the Respondent as may be required to comply with the transfer, including but not limited to all PEXA authorities, a Transfer of Land, a Discharge of Mortgage and such like forms.
10. For the purposes of any PEXA transaction to give effect to these Orders, the Applicant be appointed as the attorney for the Respondent including but not limited to providing verification of identity on her behalf.
11. The Applicant shall keep the Respondent advised of all decisions made in relation to the transfer of the B Street property.
12. That pending the transfer of the B Street property:
(a) the Applicant have sole occupation of the B Street property and pay all instalments pursuant to the mortgage, rates and taxes and like apportionable outgoings of the B Street property as and when they fall due;
(b) the parties hold their respective interests in the B Street property upon trust pursuant to these Orders; and
(c) neither party encumber or further encumber the B Street property without the consent in writing of the other party.
13. Within 14 days of the date of these Orders, the parties do all things and sign all documents necessary to transfer the balance of the parties’ redraw facility to the Applicant.
Motor Vehicles
14. Within 14 days of the date of these Orders, the parties do all acts and things and sign all necessary documents to transfer the registration of Motor Vehicle 1 into the Respondent's name.
15. Within 14 days of the date of these Orders, the parties do all acts and things and sign all necessary documents to transfer the registration of Motor Vehicle 2 into the Applicant's name.
Superannuation
16. For the purpose of these Orders, pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth):
(a) the operative time is the date 4 days after service of these Orders on the trustee;
(b) the member spouse is the Applicant Husband, Mr Bannerman, born in 1965; and
(c) the additional member spouse is the Respondent Wife, Ms Bannerman, born in 1969.
17. The base amount allocated to the Respondent Wife, the additional member spouse is $228,015.22 of the interest held by the member spouse in Super Fund 1.
18. Whenever the trustee makes a splitable payment for the interest held in Super Fund 1 by the member spouse, Mr Bannerman, born in 1965, the trustee shall pay to the additional member spouse, Ms Bannerman, her entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement that the member spouse would have had but for these Orders.
19. The Applicant be restrained by himself, his servants or agents from making any binding death benefit nomination to the trustee of Super Fund 1 in favour of any child who is an eligible beneficiary within the meaning of Regulation 13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the Respondent Wife of the splitting Order made in Paragraph 27 of these Orders.
20. Paragraphs 16 to 19 (inclusive) of these Orders are binding on the trustee of Super Fund 1.
21. Each party and the trustee of Super Fund 1 have liberty to apply in relation to the implementation of the orders affecting the superannuation interest.
Other
22. The Applicant be solely responsible for and indemnify the Respondent against any liability arising from:
(a) the DD Company Credit Card;
(b) the Z Bank Loan;
(c) P Pty Ltd; or
(d) any other liability held in his sole name.
23. The Respondent be solely responsible for and indemnify the Applicant against any liability arising from:
(a) the Z Bank credit card;
(b) personal loan from Ms Q;
(c) outstanding legal fees with N Law Firm;
(d) outstanding legal fees with O Law Firm;
(e) outstanding toll invoices with R Authority;
(f) HECS Debt; and
(g) any other liability held in her sole name.
24. The Applicant retain free from claim by the Respondent and for his sole use and benefit the following:
(a) P Pty Ltd;
(b) his personal bank account; and
(c) farm equipment.
25. The Respondent retain, free from claim by the Applicant and for her sole use and benefit the following:
(a) Vehicle 3;
(b) Vehicle 4;
(c) Vehicle 5
(d) shipping containers x 2;
(e) animal equipment;
(f) animals in her possession; and
(g) Vehicle 6.
26. The parties must each immediately do all acts and things and give all consents and execute all deeds, documents and instruments necessary to give effect to these Orders.
27. The parties forthwith do all such acts and things and sign all documents as may be necessary to enable the other party to comply with his/ her obligations under these Orders.
28. Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a) each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders including choses-in-action, any jewellery, furniture, furnishings, and motor vehicles;
(b) moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held save for any joint account in which funds are to be divided equally and the account closed;
(c) each party hereby foregoes any claims they may have to any insurance policies or superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other;
(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 the sealed final Orders; and
(e) any joint tenancy is severed
29. The Independent Children’s Lawyer be discharged.
30. All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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