FEDERAL CIRCUIT COURT OF AUSTRALIA
| ERICSSON & ERICSSON | [2014] FCCA 2953 |
| Catchwords: FAMILY LAW – Whether wife should have sole parental responsibility – whether children’s time with husband should be extended – whether wife made greater contribution to property. |
| Legislation: Family Law Act 1975 (Cth), ss.4B, 4AB, 60B, 60CA, 60CC, 61DA, 65DAC, 75(2) |
| Dundas & Blake [2013] FamCAFC 133 |
| Applicant: | MR ERICSSON |
| Respondent: | MS ERICSSON |
| File Number: | DGC 1317 of 2013 |
| Judgment of: | Judge Phipps |
| Hearing dates: | 19, 20, 21 & 22 May 2014 |
| Date of Last Submission: | 22 May 2014 |
| Delivered at: | Dandenong |
| Delivered on: | 18 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Carne |
| Solicitors for the Applicant: | Chaim Geron Solicitors |
| Counsel for the Respondent: | Ms Jenkins |
| Solicitors for the Respondent: | Rockman & Rockman |
| Counsel for the Independent Children’s Lawyer: | Mr McIvor |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
That the wife have sole parental responsibility for the children of the marriage X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008 (“the children”), in regard to the children’s education (both current and future) and health save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavours to advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
Other than in paragraph (1) the parties have equal shared responsibility for the children.
That the children live with the wife.
That the children spend time and communicate with the husband during the school term as follows:
(a)Each alternate weekend from after school or like time on Friday to 5.00pm Sunday;
(b)Each alternate Thursday from after school or like time to 7.00pm;
(c)As otherwise agreed in writing between the parties.
That the children spend time and communicate with the husband during Jewish festivals as follows:
(a)In each even numbered year for the first 2 days of Passover, the 2 days of Shavuot, the 1 day of Yom Kippur and the last 2 days of Sukkot which are otherwise known as Shmini Atzeret and Simchat Torah; and
(b)In each odd numbered year for the last 2 days of Passover, the 2 days of Rosh Hashana and the first 2 days of Sukkot;
(c)On any other Jewish festival that fall within the time that the husband would otherwise be spending time with the children.
That the children spend time and communicate with the wife during Jewish festivals as follows:
(a)In each odd numbered year for the first 2 days of Passover, the 2 days of Shavuot, the 1 day of Yom Kippur and the last 2 days of Sukkot which are otherwise known as Shmini Atzeret and Simchat Torah; and
(b)In each even numbered year for the last 2 days of Passover, the 2…
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CaseChat Overview and Summary
The court was required to determine the specific terms of parental responsibility, particularly concerning the children's education and health, and to establish a detailed schedule for the children's time with each parent, including during school terms, school holidays, and Jewish festivals. Additionally, the court needed to make orders regarding the division of property, including funds held in trust, specific personal items, and responsibility for certain financial liabilities and overpayments.
Judge Phipps ordered that the wife have sole parental responsibility for the children's education and health, subject to a process of consultation with the husband. The parties were to have equal shared responsibility in all other respects. The children were to live with the wife, with specific arrangements for time spent with the husband during school terms, school holidays, and Jewish festivals, including provisions for collection and return of the children. The court also ordered equal sharing of educational costs and extracurricular activities. In relation to property, the majority of funds held in a controlled money trust account were to be divided 72.5% to the wife and 27.5% to the husband. The husband was ordered to deliver specific personal items to the wife, and each party was assigned sole responsibility for certain financial liabilities. The wife was to receive a splitting order of the husband's superannuation.
Orders
Orders of the court
1.
That the wife have sole parental responsibility for the children of the marriage X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008 (“the children”), in regard to the children’s education (both current and future) and health save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a) Use her best endeavours to advise the father in writing of the decision intended to be made;
(b) Seek the father’s written response in relation thereto;
(c) Consider, by reference to the best interests of the children, any such response prior to making any such decision;
(d) Advise the father in writing as soon as reasonably practicable of her ultimate decision.
2.
Other than in paragraph (1) the parties have equal shared responsibility for the children.
3.
That the children live with the wife.
4.
That the children spend time and communicate with the husband during the school term as follows:
(a) Each alternate weekend from after school or like time on Friday to 5.00pm Sunday;
(b) Each alternate Thursday from after school or like time to 7.00pm;
(c) As otherwise agreed in writing between the parties.
5.
That the children spend time and communicate with the husband during Jewish festivals as follows:
(a) In each even numbered year for the first 2 days of Passover, the 2 days of Shavuot, the 1 day of Yom Kippur and the last 2 days of Sukkot which are otherwise known as Shmini Atzeret and Simchat Torah; and
(b) In each odd numbered year for the last 2 days of Passover, the 2 days of Rosh Hashana and the first 2 days of Sukkot;
(c) On any other Jewish festival that fall within the time that the husband would otherwise be spending time with the children.
6.
That the children spend time and communicate with the wife during Jewish festivals as follows:
(a) In each odd numbered year for the first 2 days of Passover, the 2 days of Shavuot, the 1 day of Yom Kippur and the last 2 days of Sukkot which are otherwise known as Shmini Atzeret and Simchat Torah; and
(b) In each even numbered year for the last 2 days of Passover, the 2 days of Rosh Hashana and the first 2 days of Sukkot;
(c) On any other Jewish festival that falls within the time that the wife would otherwise be spending time with the children.
7.
That for the purposes of spending time with the children pursuant to paragraphs 4(a) & (b) and 5(a) & (b) hereof:
(a) The party with whom the children shall spend the Jewish festival shall collect the children from the conclusion of school or 3.30pm if a non school day;
(b) In the event that the Jewish festival ends at a time that the party would not otherwise be spending time with the children pursuant to these orders the party with whom the children spend the Jewish festival shall return the children to the other one hour after the conclusion of the Jewish festival; and
(c) In the event that the Jewish festival ends at a time that Shabbat commences then the time to be spent with the party shall be extended to one hour after the conclusion of Shabbat.
8.
Subject to the specific orders in relation to Jewish Holidays, herein, the children spend time with the husband and the wife during school holiday periods on a week about basis as follows:
(a) In week one with the wife;
(b) In week two with the husband from 8.00am on Monday until 8.00am on Wednesday, with the wife from 8.00am on Wednesday to 8.00am on Friday and then with the husband from 8.00am on Friday until 5.00pm on Sunday.
9.
That the children spend time with the husband on Father’s Day from 10.00am until 6.00pm.
10.
That the children spend time with the wife on Mother’s Day from 10.00am until 6.00pm.
11.
That the children spend time with the husband on their Jewish birthdays each year, provided same do not fall on a day when driving is prohibited, as follows:
(a) For two hours, after school, if same falls on a school day;
(b) For four hours as agreed or otherwise from noon to 4.00pm at times to be agreed, should same fall on a non-school day.
12.
That the children shall continue to attend (omitted) College and the cost of tuition, books, uniforms, excursions, camps and the like and any extra-curricular activities for the children be shared equally by the husband and the wife.
13.
That each party keep the other informed of their current residential address, email address and telephone numbers.
14.
That each party shall inform the other of their intention to remove the children from Victoria no less than 7 days prior to doing so and in the event that the party is to travel interstate with the children they shall inform the other of their destination and a telephone number for such period.
15.
That should the husband be required to return to (country omitted) for any period of time that he communicate with the children whilst he is overseas by Skype of telephone at 7.00pm Australian Eastern Standard Time each Tuesday and Thursday or as otherwise agreed in writing between the parties.
16.
That unless otherwise ordered by the court the parties their servants and agents be restrained by injunction from:
(a) Discussing these proceedings or the intervention order proceedings to or within the hearing of the children or any of them;
(b) Discussing any part of the evidence in these proceedings or the intervention order proceedings, including but not limited to oral evidence, recorded material, evidence in affidavits, reports and exhibits to or within the hearing of the children or any of them; and
(c) Showing the children, or allowing the children to have access to any written or other material relating to court proceedings between the parties.
PROPERTY
17.
That the funds held by the husbands solicitors in a controlled money trust account on behalf of the parties be divided as to 72.5 per centum to the wife and 27.5 per centum to the husband.
18.
That if they are in his possession, the husband deliver to the wife within 14 days the following items:
(i) The photo album with baby photos of the children; and
(ii) The wife’s Certificate of Conversion from the (omitted).
19.
That the wife be solely responsible for repayment of Family Tax Benefit overpaid.
20.
That the husband be solely responsible for any repayment of Centrelink payments made to him while he was receiving insurance payments.
21.
Otherwise save for the purposes of enforcing payment of monies due under these or any subsequent orders;
(a) Each party be solely entitled to all property (including choses-in-action) in the possession of such party at the date of these orders;
(b) Each party be solely liable for any liability affecting any item of property to which that party is entitled pursuant to these orders;
22.
That the wife’s solicitors send by e mail to the Associate to Judge Phipps Minutes of Proposed Order providing for a splitting order of the husband’s superannuation in favour of the wife with a base amount of $12,397 together with evidence that the Trustee of the husband’s superannuation fund has be afforded procedural fairness.
23.
The application is adjourned to 27 February 2015 solely for the purpose of making the superannuation order unless made earlier in chambers.
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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