FEDERAL CIRCUIT COURT OF AUSTRALIA
| COAD & MORDEN | [2019] FCCA 2682 |
| Catchwords: FAMILY LAW – Property – where Father was the primary income earner – where the Mother was responsible for the home and care arrangements – dispute as to contributions – CGT liabilities – Father to retain former matrimonial home – just & equitable – orders made. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: A & A: Relocation Approach [2000] FamCA 751 |
| Applicant: | MS COAD |
| Respondent: | MR MORDEN |
| File Number: | MLC 9796 of 2018 |
| Judgment of: | Judge Carter |
| Hearing dates: | 12, 13, 14 & 15 August 2019 |
| Date of Last Submission: | 15 August 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Geelong Family Lawyers Pty Ltd |
| Senior Counsel for the Respondent: | Ms Stoikovska SC |
| Counsel assisting the Respondent: | Mr Goddard |
| Solicitors for the Respondent: | Howard Bear Legal Consulting Services |
ORDERS
All previous parenting orders in relation to the children X born on … 2011 and Y born on … 2013 (collectively, “the children”) be and are hereby discharged.
The parties have equal shared parental responsibility for the children.
The children live with the Mother.
As and from the conclusion of the 2019 school year, the children be permitted to relocate with the Mother to the Town A area.
The children spend time with the Father until the conclusion of the 2019 school year as follows:-
(a)each alternate weekend from the conclusion of school (or 3.30pm) Friday until the commencement of school (or 9.00am) on the following Monday;
(b)from the conclusion of school (or 3.30pm) each Wednesday until the commencement of school (or 9.00am) on Thursday; and
(c)for half of the September/October 2019 school term holidays as agreed and failing agreement from the conclusion of school (or 3.30pm) on the last day of school term until 6.00pm on the middle Saturday of the school term holiday period; and
(d)at such further…
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- COAD & MORDEN [2019] FCCA 2682
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- [2019] FCCA 2682
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CaseChat Overview and Summary
The court was required to determine whether the relocation of the children to Town A was in their best interests, considering the father's role in their lives. In relation to property, the court needed to assess the parties' respective contributions, address the capital gains tax implications arising from the sale of a unit, and make orders that were just and equitable for the division of the parties' assets, including the former matrimonial home.
The court's reasoning in the parenting matter focused on the best interests of the children, ultimately permitting the relocation to Town A from the conclusion of the 2019 school year. This decision was accompanied by detailed orders regarding equal shared parental responsibility, the children living with the mother, and a phased approach to the children spending time with the father, transitioning to a new schedule from the first term of 2020. In the property proceedings, the court made orders that reflected a just and equitable division. The father was to retain the former matrimonial home, subject to a payment to the mother by a specified date, with provisions for sale if this payment was not made. The parties were to retain their respective savings and superannuation entitlements, with specific orders made for a rollout from a self-managed superannuation fund for the benefit of the mother. The court noted its satisfaction that the property orders represented a just and equitable division.
Orders
Orders of the court
1.
All previous parenting orders in relation to the children X born on … 2011 and Y born on … 2013 (collectively, “the children”) be and are hereby discharged.
2.
The parties have equal shared parental responsibility for the children.
3.
The children live with the Mother.
4.
As and from the conclusion of the 2019 school year, the children be permitted to relocate with the Mother to the Town A area.
5.
The children spend time with the Father until the conclusion of the 2019 school year as follows:-
(a) each alternate weekend from the conclusion of school (or 3.30pm) Friday until the commencement of school (or 9.00am) on the following Monday;
(b) from the conclusion of school (or 3.30pm) each Wednesday until the commencement of school (or 9.00am) on Thursday; and
(c) for half of the September/October 2019 school term holidays as agreed and failing agreement from the conclusion of school (or 3.30pm) on the last day of school term until 6.00pm on the middle Saturday of the school term holiday period; and
(d) at such further or other times as may be agreed between the parties from time to time.
6.
The children spend time with the each of the parties for one half of the long summer school holidays as agreed, and failing agreement:-
(a) with the Father from 6.00pm on the last day of the school year until 6.00pm on the middle day of the long summer school holidays and with the Mother for the balance of the holidays in 2019/2020 and each alternate year thereafter;
(b) with the Mother from the conclusion of school (or 3.30pm) on the last day of the school year until 6.00pm on the middle day of the long summer school holidays and with the Father until 6.00pm on the last Sunday of the long summer school holiday period in 2020/2021 and each alternate year thereafter; and
(c) at such further or other times as may be agreed between the parties from time to time.
7.
Commencing from first term in 2020, the children spend time with the Father as follows:-
(a) each alternate weekend from 6.00pm on Friday until 6.00pm on Sunday (such time to be extended to 6.00pm on Monday if Monday is a non-school day);
(b) for one half of the school term holidays as agreed, and failing agreement, the first half, from 6.00pm on the last day of school term until 6.00pm on the middle Saturday of such school term holiday period;
(c) during the long summer school holiday period pursuant to order 6 hereof; and
(d) at such further or other times as may be agreed between the parties from time to time.
8.
In the event that the Father elects to travel to Town A to spend time with the children during the week when he is otherwise not due to spend time with them, he provide the Mother with no less than 5 days’ notice of his intention to do so and the Mother facilitate any such time as is reasonably requested by the Father.
9.
Changeover occur as follows:-
(a) until the conclusion of the 2019 school year, at school where appropriate, and otherwise at the Mother’s residence;
(b) upon the children relocating to Town A:-
(i) changeover occur at Bunnings Warehouse in Suburb D; and
(ii) in the event that the Father elects to attend at the children’s school to collect them on the Friday, then:-
A. his time with the children is to commence at the conclusion of school (or 3.30pm), PROVIDED ALWAYS THAT he provide the Mother with no less than 48 hours’ notice of his intention to do so; and
B. at the conclusion of his time the Mother collect the children from the Father’s residence; and
(c) otherwise as may be agreed between the parties from time to time.
10.
The children communicate with the parents by telephone, Skype or like electronic communication as follows:-
(a) commencing in 2020, during school term, the children communicate with the Father each Tuesday and Thursday between 6.00pm and 6.30pm, with the Father to initiate such calls to the Mother’s mobile telephone or like electronic device; and
(b) at any other time as reasonably requested by the children or either of them, with the parent with the care of the children to facilitate the calls to the other parent’s mobile telephone or like electronic device.
11.
Notwithstanding any other order, the children spend time with each of their parents as follows:-
(a) in 2019 and each alternate year thereafter, with the Father from 12 noon on Christmas Eve until 10.00am on Christmas Day, and with the Mother from 10.00am on Christmas Day until 6.00pm on Boxing Day; and
(b) in 2020 and each alternate year thereafter, with the Mother from 12 noon on Christmas Eve until 10.00am on Christmas Day, and with the Father from 10.00am on Christmas Day until 6.00pm on Boxing Day;
(c) on the Father’s Day weekend, the children spend time with the Father from 6.00pm on Friday until 6.00pm on Father’s Day;
(d) on the Mother’s Day weekend, in the event that the children are otherwise due to spend time with the Father, the children spend time with the Mother for that weekend; and
(e) at such further or other times as may be agreed between the parties from time to time.
12.
Each of the parties:-
(a) advise and keep the other advised at all times of the current residential address and telephone number of the children and advise the other of any change thereto within 48 hours of such change;
(b) forthwith advise the other in the event that the children or either of them suffers any serious illness or injury;
(c) authorise any medical practitioner upon which the children or either of them may attend from time to time, to communicate with the other in respect to the children’s medical conditions and/or requirements;
(d) authorise any schools at which the children or either of them may attend, from time to time, to:-
(i) provide the other, at the expense of the other, copies of all school reports, school notices and school photograph order forms in relation to the children; and
(ii) communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools; and
(e) be at liberty to attend all school functions and extra-curricular activities to which parents are normally invited;
subject to any policy in relation thereto.
Property Orders
13.
The Mother be permitted to remain in the former matrimonial home situated at Street E, Suburb F in the State of Victoria (“the former matrimonial home”) pending payment as set out in order (15) herein
14.
By way of spousal maintenance, pending the Mother vacating the former matrimonial home, the Father make all payments towards the mortgage and make all payments for bills, rates, taxes and other like apportionable outgoings with respect to the former matrimonial home.
15.
On or before 3 January 2020 (“the date”), the Father pay to the Mother the sum of $306,325 (“the payment”).
16.
Contemporaneously with the payment:-
(a) the Mother do all acts and things and sign all such documents as may be necessary to transfer to the Father (at the expense of the Father) all her right, title and interest in the former matrimonial home;
(b) the Mother vacate the former matrimonial home; and
(c) the Father refinance the mortgage encumbering the former matrimonial home into his sole same.
17.
In the event that the Father does not make the payment by the date, the former matrimonial home be sold and the terms and conditions of sale be as follows:-
(a) the sale be via public auction;
(b) the real estate agent appointed to conduct the sale be as agreed between the parties, and failing agreement, as appointed by the President of the Real Estate Institute of Victoria or their nominee; and
(c) the reserve price be as agreed between the parties in consultation with the real estate agent and failing agreement as nominated by the President of the Real Estate Institute of Victoria or their nominee.
18.
The proceeds of sale be applied as follows:-
(a) to pay all costs, commissions and expenses of the sale;
(b) to discharge the mortgage or any other encumbrance affecting the former matrimonial home;
(c) to pay to the Mother the amount of the payment outstanding, together with interest payable in accordance with the prescribed rate as set out in the Family Law Rules 2004 (Cth); and
(d) the balance then remaining to the Father.
19.
The parties have liberty to apply in relation to the terms and conditions of the sale of the former matrimonial home.
20.
The Father otherwise retain to the exclusion of the Mother:-
(a) the property situated at and known as Street G, Suburb H;
(b) the property situated at and known as Street J, Suburb K;
(c) the moneys contained in the joint mortgage saver interest account;
(d) any interest in the Street E, Suburb F Family Trust;
(e) CC Pty Ltd;
(f) his interest in the N;
(g) his interest in DD Pty Ltd;
(h) the Motor Vehicle O, Motor Vehicle P and Caravan vehicles;
(i) the Super Fund Q and EE shares;
(j) the vintage FF and vintage GG collections;
(k) his savings; and
(l) his superannuation entitlements, save as provided for in orders (24) to (29) hereof.
21.
The Mother retain to the exclusion of the Father:-
(a) her savings;
(b) her superannuation entitlements; and
(c) the funds held on trust by Geelong Family Lawyers (being the proceeds of sale of the property situated at and known as Street HH, City B (“the Street HH, City B unit”)), which shall be forthwith released to her upon the making of these orders.
22.
The Mother shall be responsible for the payment of the Capital Gains Tax (“CGT”) arising from the sale of the Street HH, City B unit, estimated to be $26,804, and forthwith upon receipt of an assessment from the Australian Taxation Office (“ATO”) she shall provide a copy of same to the Father:-
(a) in the event the CGT payable is less than $26,804, the Mother shall reimburse the Father an amount equal to 57.5% of the difference, within 21 days of receiving a copy of the ATO assessment; and
(b) in the event the CGT payable is more than $26,804, the Father shall pay the Mother an amount equal to 42.5% of the difference within 21 days of receiving a copy of the ATO assessment.
BY CONSENT, THE COURT FURTHER ORDERS THAT:
23.
Pursuant to Part VIIIB of the Family Law Act 1975 (Cth), within six days of the operative date each of the parties in their capacity as the trustees of the Street E, Suburb F Family Self-Managed Superannuation Fund (“the Fund”) do all such acts and things and sign all necessary documents as may be required to effect a rollout from the Fund in the sum of $240,000 for the benefit of the Mother to a superannuation fund as nominated by her.
24.
Upon receiving an application from Ms R pursuant to paragraph 9(1) of the Governing Rules of the Fund, each of the Mother and the Father shall accept such application.
25.
As soon as practicable after the rollout is effected, the Mother shall resign her membership of the Fund.
26.
The operative time for the rollout shall be on the fourth business day after the making of these orders.
27.
Liberty is granted to the parties to apply with respect to the drafting of these superannuation orders to ensure compliance with any legislation or rules.
28.
Upon the completed execution of the rollout, the Father indemnify and keep indemnified the Mother against any liability of the Fund howsoever and whenever arising.
THE COURT FURTHER ORDERS THAT:
29.
Unless otherwise specified in these orders, and save for the purposes 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 property (including choses-in-action) owned by or in possession of such party as at the date of these orders;
(b) monies standing to the credit of the parties in any joint bank account are to be equally split between the parties and any such account be forthwith closed;
(c) insurance policies remain the sole property of the owner named therein;
(d) each party otherwise retain for their sole use and benefit their superannuation entitlements;
(e) 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; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
30.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
31.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, 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 the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A. The Court is satisfied that the final property orders are a just and equitable division of the property in these 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
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