FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS & ELLIS | [2016] FCCA 964 |
| Catchwords: FAMILY LAW – Property – ascertaining the asset pool for division – contributions as breadwinner – contributions as homemaker and parent – sub-section 75(2) factors – just and equitable settlement. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA,75, 79 |
| Cases cited: Ackerman & Ackerman [2013] FMCAfam 109 |
| Applicant: | MR ELLIS |
| Respondent: | MS ELLIS |
| File Number: | LNC 515 of 2013 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 28, 29, 30 and 31 July 2015 |
| Date of Last Submission: | 31 July 2015 |
| Delivered at: | Launceston |
| Delivered on: | 28 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Turnbull |
| Solicitors for the Applicant: | Rae & Partners Lawyers |
| The Respondent appeared unrepresented |
| Counsel for the Independent Children's Lawyer: | Mr P Briffa |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Commission of Tasmania |
ORDERS
That MR ELLIS (“the father”) and MS ELLIS (“the mother”) have equal shared parental responsibility for X born (omitted) 2002, Y born (omitted) 2006 and Z born (omitted) 2009 (“the children”).
That the children live with the mother.
That the children spend time and communicate with the father as follows:
(a)during school terms on a fortnightly basis from after school on Thursday until the start of school on the following Tuesday, commencing on the first Thursday of each school term;
(b)for one week in each school holiday at the end of Terms 1, 2 and 3 as agreed, but failing agreement for the first week of the relevant school holiday;
(c)from 5.00 pm on Maundy Thursday until 5.00 pm on Easter…
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CaseChat Overview and Summary
The court was required to determine the parenting arrangements for the three children, specifically addressing the father's request for equal time and the mother's concerns stemming from her religious beliefs and allegations of family violence. Furthermore, the court had to ascertain the asset pool for division and make orders for the property settlement between the parties, considering all relevant contributions and future circumstances. The court also had to decide on the children's schooling and whether they should be permitted to travel overseas.
Judge Roberts made orders for equal shared parental responsibility, with the children to live with the mother and spend time with the father on a detailed fortnightly and holiday schedule. The court also ordered that the children be enrolled at specific schools and permitted interstate and overseas travel with the children, provided specific notice requirements were met. In relation to property, the father was ordered to transfer his interest in a vacant land property to the mother, who would then indemnify him against any liabilities. The mother was also permitted to deal with funds in a specific bank account to the exclusion of the father, and all other property was to be retained by the party in possession, with all superannuation claims extinguished. The parties' applications for orders under Parts VII and VIII of the Family Law Act 1975 were otherwise dismissed.
Orders
Orders of the court
1.
That MR ELLIS (“the father”) and MS ELLIS (“the mother”) have equal shared parental responsibility for X born (omitted) 2002, Y born (omitted) 2006 and Z born (omitted) 2009 (“the children”).
2.
That the children live with the mother.
3.
That the children spend time and communicate with the father as follows:
(a) during school terms on a fortnightly basis from after school on Thursday until the start of school on the following Tuesday, commencing on the first Thursday of each school term;
(b) for one week in each school holiday at the end of Terms 1, 2 and 3 as agreed, but failing agreement for the first week of the relevant school holiday;
(c) from 5.00 pm on Maundy Thursday until 5.00 pm on Easter Tuesday;
(d) from 3.00 pm on Christmas Eve until 3.00 pm on New Year’s Eve each year;
(e) for two further periods of one week each during the children’s long summer school holidays as may be agreed, but failing agreement as nominated by the father in writing at least 21 days prior to start of the relevant long summer school holiday;
(f) commencing in the 2018/2019 long summer school holidays the father may at his election combine two of the periods referred to in paragraphs (d) and (e) to provide for a single period of two weeks, provided that the father advises the mother of his election at least 21 days prior to the start of the relevant long summer school holiday;
(g) on each of the children’s birthdays at times to be agreed between the parties, but failing agreement if the birthday falls on a weekday for a minimum of two hours after school and if it falls on a non-school day for a minimum of five hours;
(h) on Father’s Day from 10.00 am on the Saturday preceding Father’s Day until 9.00 am or the start of school on the following Monday;
(i) by telephone at reasonable times; and
(j) on such further or other occasions as may be agreed between the father and the mother from time to time.
4.
That unless the parties agree otherwise the mother must collect the children from the father’s residence for the purposes of changeover at the end of each period referred to in paragraphs (c), (d), (e) and (f) of Order No. 3 hereof and the father (or his nominee) must collect the children from, and return them to the mother or school at all other times.
5.
That unless the parties agree otherwise the children must be enrolled at (omitted) School or (omitted) High School.
6.
That the father and the mother are permitted to travel interstate and/or overseas with the children provided that the parent who is not travelling is provided with at least 28 days written notice of:
(a) the travelling parent’s intention to do so;
(b) a detailed travel itinerary; and
(c) full details of how the children may contacted while travelling interstate and/or overseas.
7.
That if the father provides the mother with Australian passport application forms for the children, the mother must return them to the father properly completed and signed within 21 days.
8.
That in the event that the mother fails to comply with her obligations under the preceding Order hereof, the father has leave to apply for passports for the children notwithstanding that the mother has not provided her consent to the issue of such passports.
9.
That within 45 days the father must do all such acts and things and sign all necessary documents to transfer to the mother all his right, title and interest in the vacant land known as Property F in Tasmania being the property comprised and described in Certificate of Title Volume (omitted) Folio (omitted) (‘the Property F property”).
10.
That the mother must thereafter indemnify the father against any liability for any outgoings in respect of the Property F property.
11.
That Orders No. 1 and 2 of this Court of 30 October 2014 be and are hereby discharged and the mother is entitled to deal with the funds held in (omitted) Bank account No. (omitted) in her name to the exclusion of the father.
12.
That unless specified in these Orders:
(a) each party is solely entitled to the exclusion of the other to all other property in possession of that party as at the date of these Orders;
(b) each party is solely liable for and must indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(c) any claim that either party may have to any superannuation benefit belonging to or earned by the other is extinguished.
13.
That the parties’ Applications for Orders pursuant to Parts VII and VIII of the Family Law Act 1975 are otherwise dismissed.
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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