FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARSTOW & BARSTOW | [2016] FCCA 2185 |
| Catchwords: FAMILY LAW – Children and property – issue of whether children attend private schools or who should meet the fees if they do attend private schools. |
| Legislation: Family Law Act 1975 (Cth) ss.60CC, 75(2), 79 |
| Cases cited: Pierce & Pierce (1999) FLC 92-844 |
| Applicant: | MR BARSTOW |
| Respondent: | MS BARSTOW |
| File Number: | MLC 1410 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 18, 19, 20 & 21 July 2016 |
| Date of Last Submission: | 21 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Barbayannis Lawyers |
| Counsel for the Respondent: | Ms Byrnes |
| Solicitors for the Respondent: | Christopher James Lawyers Pty Ltd |
ORDERS
That the parties have equal shared parental responsibility for the children, X born (omitted) 2005 and Y born (omitted) 2010 (“the children”).
That the children live on a week-about basis between the parties during school terms with changeovers to occur at the conclusion of school on Thursdays or as otherwise agreed between the parties.
That the children spend one half of each school term holiday with each of the parents being with the father for the first half of such holidays in 2016 and each alternate year thereafter and with the mother for the first half of the holidays in 2017 and in each alternate year thereafter with changeovers to occur at 6.00 pm on the middle day of such holidays.
That the children live between the parties on a week-about basis during long summer school holidays with the children to spend the first week of such holidays with the father in 2016 and in each alternate year thereafter and the first week of the holidays with the mother in 2017 and in each alternate year thereafter with the summer holiday to commence on the last day of term 4 for the child last at school during that year.
That the children spend time with each of their parents on Christmas Day, the children’s birthdays and that parent’s birthday in each year as agreed between the parties.
That in any event the children spend Father’s Day with the father each year from 6.00 pm on the preceding day until 6.00 pm on Father’s Day and with the mother on Mother’s Day from 6.00 pm on the preceding day until 6.00 pm on Mother’s Day.
That the children or either of them spend such other time with the parents as agreed by the parents in writing and including any variations of the above.
Children’s schooling
That the wife be entitled to enrol the children at private schools of her choice in the 2017 school year provided that the wife be solely responsible for the payment of school fees for both children but providing that the wife not thereafter change the children’s schools without the consent of the father.
Property
That within 60 days from the date of these orders the husband…
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- Case
- [2016] FCCA 2185
- Decision Date
CaseChat Overview and Summary
The court was required to determine appropriate parenting orders for the children, including their living arrangements, time spent with each parent, and arrangements for school holidays and special days. Additionally, the court needed to make orders for the division of the parties' property, including the family home, vehicles, shares, bank accounts, and superannuation entitlements, as well as the allocation of liabilities.
Judge McGuire made orders for equal shared parental responsibility, with the children to live on a week-about basis between the parents during school terms and during long summer holidays, with specific arrangements for school holidays and special days. In relation to property, the husband was ordered to pay a lump sum to the wife, and each party was to transfer their respective interests in various assets to the other, with specific provisions for the discharge of liabilities and indemnities. The court also made detailed orders regarding the division of the husband's superannuation entitlements pursuant to sections 90MT(4) and 90MT(1)(a) of the *Family Law Act 1975*, including restrictions on the husband's ability to alter his superannuation interests. The parties also agreed to contribute equally to the children's extra-curricular costs and reasonable schooling extras.
Orders
Orders of the court
1.
That the parties have equal shared parental responsibility for the children, X born (omitted) 2005 and Y born (omitted) 2010 (“the children”).
2.
That the children live on a week-about basis between the parties during school terms with changeovers to occur at the conclusion of school on Thursdays or as otherwise agreed between the parties.
3.
That the children spend one half of each school term holiday with each of the parents being with the father for the first half of such holidays in 2016 and each alternate year thereafter and with the mother for the first half of the holidays in 2017 and in each alternate year thereafter with changeovers to occur at 6.00 pm on the middle day of such holidays.
4.
That the children live between the parties on a week-about basis during long summer school holidays with the children to spend the first week of such holidays with the father in 2016 and in each alternate year thereafter and the first week of the holidays with the mother in 2017 and in each alternate year thereafter with the summer holiday to commence on the last day of term 4 for the child last at school during that year.
5.
That the children spend time with each of their parents on Christmas Day, the children’s birthdays and that parent’s birthday in each year as agreed between the parties.
6.
That in any event the children spend Father’s Day with the father each year from 6.00 pm on the preceding day until 6.00 pm on Father’s Day and with the mother on Mother’s Day from 6.00 pm on the preceding day until 6.00 pm on Mother’s Day.
7.
That the children or either of them spend such other time with the parents as agreed by the parents in writing and including any variations of the above.
Children’s schooling
8.
That the wife be entitled to enrol the children at private schools of her choice in the 2017 school year provided that the wife be solely responsible for the payment of school fees for both children but providing that the wife not thereafter change the children’s schools without the consent of the father.
Property
9.
That within 60 days from the date of these orders the husband pay to the wife a lump sum of $305,516.00.
10.
That contemporaneously with the payment referred to in order (9) the wife transfer to the husband all her right, title and interest in the following absolutely:
(i) The property situate at Property P, (omitted) Victoria;
(ii) The Nissan (omitted) motor vehicle;
(iii) The (omitted) and (omitted) shares in the name of the husband;
(iv) All personalty and chattels in the possession or under the control of the husband as at the date of these orders;
(v) The balances of bank accounts or like investments in the name of or to the benefit of the husband as to the date of these orders;
(vi) Any of the husband’s superannuation policies or entitlements but subject to these orders;
(vii) The Barstow Family Trust.
11.
That the wife be solely responsible for and indemnify the husband in respect of the following:
(i) Any and all liabilities attaching to any of the assets to be retained by the wife pursuant to these orders;
(ii) Any and all liabilities incurred by the wife since separation in either joint names or in her name alone.
12.
That contemporaneously with the payment referred to in order (9) herein the husband transfer to the wife all of his right, title and interest to the wife absolutely:
(i) The (omitted) Mercedes Benz motor vehicle;
(ii) All personalty and chattels in the possession or under the control of the wife as at the date of these orders;
(iii) The balances of bank accounts or like investments in the name of or to the benefit of the wife as to the date of these orders;
(iv) The wife’s superannuation policies or entitlements.
13.
That the husband be solely responsible for and indemnify the wife in respect of the following:
(i) Any and all liabilities attaching to any assets to be retained by the husband pursuant to these orders including but not limited to the (omitted) Bank mortgage secured by the property at Property P in Victoria and in this respect the husband refinance that mortgage and provide the wife with a release of her liability under that mortgage;
(ii) Any and all liabilities incurred by the husband since separation in either joint names or in his name alone.
14.
That should the payment by the husband to the wife pursuant to order (9) herein not be made in full by the due date then the property at Property P be placed in the hands of agents for sale upon such terms and conditions as may be agreed between the parties including as to mode of sale, reserve price and selling agent and failing agreement then as determined by a representative or nominee of the Real Estate Institute of Victoria and with the proceeds to be disbursed as follows:
(i) The payment of reasonable costs and disbursements of the sale;
(ii) To discharge any mortgage secured by the Property P property;
(iii) The balance to be distributed between the parties so as to give effect to a 50/50 division of the net tangible assets of the parties pursuant to these orders and reasons.
15.
That pursuant to section 90MT(4) of the Family Law Act 1975 (as amended) a base amount of $63,000.00 be allocated to the wife out of the husband’s interest in the (omitted) Superannuation Fund member name: Mr Barstow (date of birth (omitted) 1974).
16.
That pursuant to section 90MT(1)(a) of the Family Law Act 1975 wherever the Trustee makes a splittable payment from the interest held by the husband the Trustee:
(a) Pay the wife or her legal personal representative and assigns the entitlement calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001; and
(b) Make a corresponding reduction in the entitlement the husband would have had in the Fund but for these orders.
17.
That these orders have effect from the operative time of these orders being 4 business days after the day on which the final sealed, signed orders are served on the Trustee.
18.
That the Trustee of the Fund do all such acts and things and sign all such documents as may be necessary so that the Trustee, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, can calculate the entitlement of and make payment to the wife in accordance with order (15).
19.
That upon receipt by the wife of a payment slip notice when issued by the Trustee pursuant to Rule 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife exercise her election pursuant to Rule 7A.06 Superannuation Industry (Supervision) Regulations 1994 to request the Trustee to roll over or transfer the transferrable benefits as Rule 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994 to another fund of the wife’s choosing.
20.
That following the action taken by the Trustee of the Fund as contemplated in Rule 14F(2)(b) of the Family Law (Superannuation) Regulations 2001 the provisions of Rule 14 Family Law (Superannuation) Regulations 2001 will make any splittable payments following the action by the Trustee, non-splittable.
21.
That until the happening of any of:
(a) The establishment of a separate account in the name of the wife and the fund; or
(b) The transfer or rolling over into another superannuation fund the payment split created by order (15) hereof; or
(c) The wife satisfies the condition of release and is paid the payment split which is created by order (15) hereof; or
(d) The wife executes a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 in relation to the payment split created by order (15) hereof.
22.
The husband be and is hereby restrained by himself, his servants or agents, from executing a binding death benefit nomination in favour of any person or from doing any such act or thing which would render any part of his interest in the Fund a non-splittable payment within the meaning of Rule 13 of the Family Law (Superannuation) Regulations 2001.
23.
That until the operative time of these orders the husband will be restrained by himself, his servants or agents from making application for withdrawal of any funds from his interest in the Fund.
24.
Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
NOTATION:
25.
The parties agreed and acknowledged during their evidence that they would contribute equally to the children’s extra-curricular costs and also to the costs of reasonable extras including uniforms for the children’s schooling.
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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