FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIRCH & MILLETT (No.2) | [2018] FCCA 3449 |
| Catchwords: FAMILY LAW – Property – small asset pool – just and equitable to make property orders – notional add back of sum of money received by the Husband following separation – contributions assessed to be equal – lump sum spousal maintenance payment to the Wife – adjustment to the Wife pursuant to s.75(2) factors. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 72, 75, 77A, 79, 90ME, 90MT, 117 Superannuation Industry (Supervision) Regulations 1994 (Cth), regs.7A, Federal Circuit Court Rules 2001 (Cth), r.21.15 |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 In the Marriage of Hickey [2003] FamCA 395 Taylor v Barker (2007) 37 Fam LR 461 |
| Applicant: | MR BIRCH |
| Respondent: | MS MILLETT |
| File Number: | MLC 1262 of 2017 |
| Judgment of: | Judge Kirton |
| Hearing dates: | 15, 16 and 26 March 2018 |
| Date of Last Submission: | 26 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mellas |
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Armstrong Legal |
ORDERS
Parenting
All previous parenting orders be discharged.
The Applicant (Husband) and the Respondent (Wife) have equal shared parental responsibility for the children [X] born 2008, [Y] born 2010 and [Z] born 2016 (Children).
The Children live with the Wife.
The Wife be at liberty to relocate the Children’s residence to [country omitted].
Husband’s Time with the Children prior to Wife departing for [country omitted] with the Children
Prior to the Wife departing for [country omitted] with the Children, the Husband spend time with the Children as agreed between the parties in writing and failing agreement, spend time with:
(a)[X] and [Y] (Older Children) each alternate weekend from the conclusion of school Friday (or 3.00 pm) to 4.00 pm Sunday, commencing 7 December 2018.
(b)[Z] from each alternate Sunday from 1.00 pm to 4.00 pm, commencing 9 December 2018.
Where change over does not take place at the Children’s school it shall occur at the McDonald’s Restaurant, Town A.
Husband’s Time with the Children when they are living in [country omitted]
When the Wife and Children have relocated to [country omitted], the…
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- AGLC
- BIRCH & MILLETT (No.2) [2018] FCCA 3449
- Case
- [2018] FCCA 3449
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether to permit the mother's international relocation of the children, and if so, to establish parenting arrangements that would facilitate ongoing involvement of both parents. Additionally, the court addressed property settlement issues, including the notional add-back of a sum received by the husband post-separation, the assessment of contributions, and the provision of spousal maintenance. The court also made orders regarding the division of superannuation interests.
In relation to parenting, the court found it to be in the children's best interests to permit the mother to relocate with them to [country omitted], while also ordering equal shared parental responsibility. The children were ordered to live with the mother, and detailed arrangements were made for the father's time with the children both prior to and following the relocation, including provisions for travel and communication. The court also ordered the husband to complete a Men's Behaviour Change Program and imposed restraints on both parents regarding discussions about the proceedings and denigration of the other parent.
On the property and spousal maintenance front, the court determined it was just and equitable to make property orders, assessing contributions as equal. A lump sum spousal maintenance payment was ordered to the wife, with an adjustment made pursuant to s.75(2) factors. The court also made specific orders regarding the division of superannuation interests, allocating a base amount to the wife and outlining the process for future payments. The proceeds of a specific property were divided, with a larger portion allocated to the wife.
Orders
Orders of the court
Parenting
1.
All previous parenting orders be discharged.
2.
The Applicant (Husband) and the Respondent (Wife) have equal shared parental responsibility for the children [X] born 2008, [Y] born 2010 and [Z] born 2016 (Children).
3.
The Children live with the Wife.
4.
The Wife be at liberty to relocate the Children’s residence to [country omitted].
Husband’s Time with the Children prior to Wife departing for [country omitted] with the Children
5.
Prior to the Wife departing for [country omitted] with the Children, the Husband spend time with the Children as agreed between the parties in writing and failing agreement, spend time with:
(a) [X] and [Y] (Older Children) each alternate weekend from the conclusion of school Friday (or 3.00 pm) to 4.00 pm Sunday, commencing 7 December 2018.
(b) [Z] from each alternate Sunday from 1.00 pm to 4.00 pm, commencing 9 December 2018.
6.
Where change over does not take place at the Children’s school it shall occur at the McDonald’s Restaurant, Town A.
Husband’s Time with the Children when they are living in [country omitted]
7.
When the Wife and Children have relocated to [country omitted], the Older Children spend time with the Husband as agreed between the parties in writing and failing agreement:
(a) During the [country omitted] Government gazetted school term time (Term) for a period of up to 7 consecutive days each Term provided:
(i) The Husband gives to the Wife 14 days’ notice of his intention to travel to [country omitted] and spend time with the Older Children; and
(ii) The Wife consents, with such consent not to be unreasonably withheld.
(b) During the Term 1 school holidays for 10 consecutive days commencing no later than 2 days after the last scheduled school day in Term 1 2020 and ending no later than one day before the first scheduled school day in Term 2 in 2020 and each alternate year thereafter.
(c) During the Term 2 school holidays for 14 consecutive days commencing no later than 2 days after the last scheduled school day in Term 2 2019 and ending no later than the day before the first scheduled school day in Term 3 2019 and each year thereafter.
(d) During the Term 3 school holidays for 10 consecutive days commencing no later than 2 days after the last scheduled school day in Term 3 2019 and ending no later than the day before the first scheduled school day in Term 4 in 2019 and each alternate year thereafter.
(e) For 3 consecutive weeks in the long summer holidays as follows:
(i) Commencing no later than 2 days after the last scheduled school day of Term 4 in 2019 and each alternate year thereafter.
(ii) Commencing no earlier than 14 days after the last scheduled school day of Term 4 2020 and ending no later than 2 days prior to the first day of Term 1 in 2021 and each alternate year thereafter.
8.
When the Wife and [Z] have relocated to [country omitted], [Z] spend time with the Husband as agreed between the parties in writing and failing agreement:
(a)During Term time provided:
(i) The Husband gives to the Wife 14 days’ notice of his intention to travel to [country omitted] and spend time with [Z]; and
(ii) The Wife consents, with such consent not to be unreasonably withheld;
(iii) At the following times each Term:
A. From the date of this order until 1 December 2019 for up to 6 hours each day for up to 3 consecutive days.
B. From 1 December 2019 to 1 December 2020 for a period of up to 3 consecutive nights.
C. From 1 December 2020 for a period of up to 7 consecutive nights.
(b) For 6 hours each day for the last three days of the Older Children’s time with the Husband provided for in paragraph 7, from the date of this Order until 1 December 2019.
(c) For 3 consecutive nights during the last 3 nights of the Older Children’s time with the Husband provided for in paragraph 7, from 1 December 2019 until 1 December 2020.
(d) For 7 consecutive nights during the last 7 nights of the Older Children’s time with the Husband provided for in paragraph 7, from 1 December 2020 until the commencement of Term 1 2022.
(e) From the commencement of Term 1 2022 at the same time that the Older Children spend with the Husband in accordance with paragraph 7.
(f) For the purposes of paragraphs 8(b), (c) and (d) the Wife travel to Australia with [Z] for the remaining days of the Older Children’s time with the Husband in accordance with paragraph 7 and accompany the Children back to [country omitted].
9.
For the purposes of paragraphs 7 and 8:
(a) The Husband is to be responsible for booking and paying for the Wife and Children to travel from [country omitted] to and from Australia, unless otherwise agreed in writing between the parties.
(b) The Husband will book and pay for the Wife and Children’s travel from [country omitted] to and from Australia not less than 28 days prior to the scheduled departure date.
(c) The Husband is to provide to the Wife the travel itinerary and electronic tickets for the Wife and Children to facilitate their travel referred to in paragraphs 9(a) and (b) not less than 28 days prior to the scheduled departure date.
(d) The Husband is to provide to the Wife not less than 35 days written notice that he is unable to spend time with the Children in accordance with these Orders.
(e) In the event that the Husband does not comply with paragraphs 9(a) to (d) of this Order, the Husband’s time with the Children is suspended for the relevant Term holiday period and will recommence upon the next Term holiday period, or otherwise as agreed in writing between the parties.
10.
For the purposes of paragraphs 7 to 9, the Husband and the Wife are to sign all necessary documents to ensure that renewed passports are issued to each of the Children as necessary.
11.
For the purposes of paragraph 10, the Wife is to provide to the Husband all documents to enable the renewal of each of the Children’s passports at the relevant time and the Husband is to sign the documents and return them to the Wife within 21 days of receiving the documents.
12.
For the purposes of paragraphs 7(a) and 8(a):
(a) The Husband is to ensure that the Children attend school days and any scheduled extra-curricular activities during the time that the Children spend with him; and
(b) The Wife is to provide to the Husband 7 days before the Husband commences to spend time with the Older Children or [Z], a schedule of any of the Children’s extra-curricular activities that they are to attend during the time that they are with the Husband.
13.
The Husband be at liberty to communicate with the Children by telephone, Skype, Viber or Facetime at all reasonable times as agreed between the parties in writing and failing agreement:
(a) Each Tuesday and Thursday between 6.00 pm and 7.00 pm [country omitted] time.
(b) On each of the Children’s birthdays between 6.00 pm and 7.00 pm [country omitted] time.
(c) On [A]’s birthday on [date] and the birthday of any sibling of [A]’s between 6.00 pm and 7.00 pm [country omitted] time.
(d) On Father’s Day between 6.00 pm and 7.00 pm [country omitted] time.
14.
The Wife be at liberty to communicate with the Children during their time with the Husband by telephone, Skype, Viber or Facetime at all reasonable times as agreed between the parties in writing and failing agreement each Tuesday and Thursday between 6.00 pm and 7.00 pm.
Husband to complete Men’s Behaviour Change Program
15.
The Husband is to forthwith enrol in, attend and complete a Men’s Behaviour Change Program recommended by the Men’s Referral Service located at the Family Advocacy and Support Service, Owen Dixon Commonwealth Law Court Building, 305 William Street.
16.
The Husband provide proof of attendance and completion of the Men’s Behaviour Change Program to the Wife by 30 November 2019.
17.
In the event that the Husband does not comply with paragraphs 15 and 16 of these Orders, his time with the Children pursuant to paragraphs 7 and 8 is suspended until he has complied with paragraphs 15 and 16.
Restraints on the Parents
18.
Both parents be and are hereby restrained from:
(a) Discussing these proceedings with or in the presence or hearing of the Children or allowing any other person to do so.
(b) Denigrating the other parent or member of the parent’s family or household to or in the presence or hearing of the Children or allowing any other person to do so.
Parents to provide information
19.
Each parent forthwith advise the other in the event of any change to their contact telephone number and email address and shall provide 28 days’ written notice of any proposed change of address.
20.
Each parent forthwith inform and keep the other informed of any illness, injury or accident suffered by any of the Children requiring medical treatment, and provide the other parent with details of the child’s treatment and medical practitioner and authorise such medical professional to communicate with the other parent.
Education Issues
21.
The Wife is to authorise all day care, kindergarten or schools at which the Children attend to:
(a) Provide the Husband, at the expense of the Husband, copies of all reports, notices and applications for photographs in relation to the Children.
(b) Communicate with the Husband either by telephone, in writing or by personal attendance, in relation to the Children’s progress.
(c) Allow the Husband to attend all functions to which parents are invited.
22.
For the avoidance of doubt the Husband is at liberty to attend kindergarten and school events, parent-teacher interviews and the like to which parents are invited.
Property
23.
The proceeds of Property K be distributed as follows:
(a) $13,825.72 to the Husband.
(b) $85,210 to the Wife.
Spousal Maintenance
24.
(a) This is an order to which s.77A of the Family Law Act 1975 (Cth) (Act) applies.
(b) The amount of $10,000.00 of the moneys ordered to be paid to the Wife pursuant to paragraph 23(b) of these Orders is attributable to the provision of maintenance of the Wife.
25.
Paragraph 1 of the Orders made by Judge Harland on 12 October 2017 be discharged.
Superannuation
26.
Having been accorded procedural fairness in relation to these Orders, Orders 27, 28, 29 and 30 are binding on Super Fund D (Trustee) as trustee of the Super Fund D (Fund).
27.
The Court allocate, as required by s.90MT(4) of the Act, a base amount of $54,249.00 of the Husband’s interest in the Fund as at the date of these Orders to the Wife.
28.
Pursuant to s.90MT(1)(a) of the Act, whenever the Trustee of the Fund makes a splittable payment out of the Husband’s interest in the Fund, the Trustee will:
(a) Pay to the Wife, or her administrators, executors, beneficiaries, heirs or assigns, to the extent permitted by law, the entitlement calculated in accordance with pt.6 of the Family Law (Superannuation) Regulations 2001 (Cth) (Regulations); and
(b) Make a corresponding reduction in the entitlement that the Husband would have had in the Fund but for these Orders.
29.
Paragraph 27 has effect from the operative time and the operative time for the purpose of these Orders is 4 working days after the service of a sealed copy of these Orders on the Trustee, with such service to be effected by the Husband.
30.
The Trustee of the Fund will do all such acts and things, and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Regulations, the Trustee can calculate the entitlement awarded to the Wife in accordance with paragraph 27 of these Orders and pay the entitlement whenever the Trustee makes a splittable payment from the Husband’s interest in the Fund.
31.
The Wife do all things necessary, including but not limited to, exercising her request pursuant to reg.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in the Wife’s name in the Fund with the value of the transferable benefits calculated in accordance with reg.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
32.
Pursuant to reg.14F of the Regulations, any payment from the Husband’s superannuation interest in the Fund made after the Trustee has created a new interest in the Wife’s name in the Fund are not splittable payments.
33.
Until the happening of any of:
(a) The establishment of a separate account in the name of the Wife;
(b) The transfer or rolling over into another superannuation fund of the Wife’s entitlements created by paragraph 27 hereof;
(c) The Wife satisfying a condition of release and being paid the payment split which was created by paragraph 27 hereof; or
(d) The Wife executing a waiver of rights within the meaning of s.90MZA of the Act in relation to the payment split created by paragraph 27 hereof;
the Husband be, and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any act or thing which would render any part of his interest in the Fund a ‘non-splittable payment’ within the meaning of reg.12 or 13 of the Regulations.
Miscellaneous Property Matters
34.
Unless otherwise specified in these Orders, and save for the purpose of enforcing any monies due under these Orders:
(a) Each party 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.
(b) Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) in the possession of such party as at the date of these Orders.
(c) Monies standing to the credit of the parties in any personal bank account as at the date of these Orders shall become the sole property of the party in whose name that account is held.
(d) All insurance policies remain the sole property of the named owner.
(e) Each party shall be solely responsible for the payment of any debt accrued in their respective name as at the date of these Orders.
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
(g) Save as provided herein, each party renounces any claims they may have to superannuation or employment benefits or insurance benefits belonging to or earned by the other.
35.
All extant applications are otherwise dismissed.
36.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A. Subsequent to relocation, the Wife will use her best endeavours to register these Orders in a Court in [country omitted] with competent jurisdiction.
B. Pursuant to ss.65DA(2) and 62B of 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 are set out in Annexure A and these particulars are included in these orders.
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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