FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hall & Neuman (No 2) [2024] FedCFamC2F 1324
File number(s): MLC 2341 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 September 2024 Catchwords: FAMILY LAW – parenting and property – final orders – determination of whether one parent reneged on agreement for the family to move and live overseas – whether one parent coercive and controlling – whether the child should live with her mother or her father – father lives in Melbourne and mother lives in Country B – question of which parent will best support the child’s relationship with the other parent – whether child settled where currently living – choice between child lives with one of two good parents – property division proceedings – determination of extent of one parents inheritance and weight to be given to that inheritance – determination of disputed items in pool of property including treatment of paid legal fees and proceeds of sale of shares – consideration of contribution – whether equal as alleged by father or 60/40 as alleged by mother – contribution determined to be 57/43 – consideration of section 75(2) factors – whether should be nil or 10% - determination section 75(2) factors should be 7% - consideration of dollar amount of adjustments as well as percentage – overall division of assets 64/36 – agreed equality of superannuation split – proposed orders in default of payment need clarification – final orders made with direction for parties to bring in agreed default provision Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 75(2), 79(4) and 80
Family Law Amendment Act 2023 (Cth)
Cases cited: Adamson & Adamson (2014) FLC 93-622
AJO & GRO [2005] FamCA 195; (2005) FLC 93-218
Britt & Britt (2017) FLC 93-764
Clauson & Clauson (1995) FLC 92-595
Dickons & Dickons [2012] FamCAFC 154
Fields & Smith (2015) FLC 93-638
Fox v Percy (2003) 214 CLR 118
Franklyn & Franklyn (2019) FamCAFC 256
Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143
Hobson v Hobson (2020) 61 Fam LR 557
Hoffman & Hoffman (2014) FLC 93-591
Hurst & Hurst (2018) FLC 93-851
Keskin & Keskin and Anor (2019) FLC 93-932
Lovine & Connor and Anor (2012) FLC 93-515
Malcolm & Munro (2011) FLC 93-460
McCall & Clark (2009) FLC 93-405
Morden & Coad [2019] FamCAFC 233
Phipson & Phipson [2009] FamCAFC 28
Rosati v Rosati (1998) FLC 92-804
Sayer & Radcliffe [2012] FamCAFC 209
Townsend & Townsend [1994] FamCA 144; (1995) FLC 92-569
Trevi& Trevi (2018) FLC 93-858
Varnham & Moses (2021) FLC 94-007
Wallis & Manning (2017) FLC 93-759
Wayne & Wayne [2010] FamCAFC 33
Whisprun Pty Ltd v Dixon: (2003) 234 CLR 492
Division: Division 2 Family Law Number of paragraphs: 342 Date of last submission/s: 7 February 2024 Date of hearing: 29 January 2024 –…
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- AGLC
- Hall & Neuman (No 2) [2024] FedCFamC2F 1324
- Case
- [2024] FedCFamC2F 1324
- Decision Date
CaseChat Overview and Summary
The court found that the mother had not reneged on the agreement for the family to move overseas, and there was no evidence of coercive and controlling behaviour. The court determined that the child should live with the father but outlined specific arrangements for the child to spend time with the mother, including detailed schedules for school terms and holidays, as well as travel logistics and responsibilities. The court also addressed the property division, concluding that the inheritance should be treated as part of the property pool, with a contribution ratio of 57/43 in favour of the father. The court applied the section 75(2) factors and determined a 7% adjustment, resulting in an overall division of assets at 64/36 in favour of the father, with an agreed split of superannuation.
The final orders included equal shared parental responsibility for long-term decisions, with the child residing primarily with the father. Detailed provisions were made for the child's time with the mother, including specific schedules and travel arrangements. The court also addressed the division of property, stipulating the transfer of certain assets, payment of a specified amount, and the handling of superannuation, including the calculation of entitlements and the dissolution of the superannuation fund. The court clarified the terms for default provisions in case of non-compliance and addressed the need for mutual indemnity and other general provisions.
Orders
Orders of the court
MLC 2341 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS HALL
Applicant
AND:
MR NEUMAN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 SEPTEMBER 2024
THE COURT ORDERS THAT:
1. Mr Neuman, (‘the Father’) and Ms Neuman (‘the Mother’), have equal shared parental responsibility for long term decisions in relation to the child X born in 2014 (hereinafter referred to as "[X]").
Residence
2. X live with the Father.
If both parents live in Australia: week about equal shared care
3. In the event the Mother permanently relocates to live in Australia and lives, or arranges to live, within a distance from the school X is attending where it would be practical for X to attend when living with the Mother, on or before 31 December 2024, then X live with her parents, the Mother and the Father, on an equal shared basis and;
(a) during school term, on a week about routine, with changeover after school on Friday and if a non school day at 3.30pm; and
(b) during school holidays for one half of each school holidays as agreed; and
(i) in default of agreement in writing by text message or email, with the Mother for the first half of school holidays and with the Father for the second half in odd years; and
(ii) in default of agreement in writing by text message or email, with the Father for the first half of school holidays and with the Mother for the second half in even years; and
(c) On special occasions as agreed in writing by text message or email; and
(d) As otherwise agreed between the parties in writing by text message or email.
If the parents live in different countries: X lives with the Father
4. That in the event that the Mother does not live in the same city as X, then X live with the Father and spend time with the Mother as follows:
In Australia:
(a) During school term for 14 consecutive days at a time or such longer period agreed between the Father and the Mother, upon the Mother providing 21 days notice in writing to the Father (or such shorter notice agreed in writing) commencing on the day after the Mother's arrival in Australia and concluding at 3.30pm on the 15th day;
(b) For 8 consecutive days each school term holiday;
(c) Such further and other times agreed by the Father and Mother in writing;
In Country B (or such other Convention country in which the Mother may reside)
(d) For 2 weeks during each Victorian school term 2 holiday period each year (“the mid-year contact period)
(e) For 4 weeks during each Victorian school long summer holiday (“the end of year contact period”) as follows;
(i) From 23 December 2024 to 20 January 2025 and each alternate year thereafter;
(ii) From 29 December 2025 to 25 January 2026 and each alternate year thereafter;
(iii) Such further and other times agreed by the Father and Mother in writing
5. To facilitate the child's travel to and from Country B for the mid-year contact period the Father travel with X to Country B International Airport ("the mid-year changeover destination") and provide to the Mother 72 hours prior to departure from Australia:
(a) A copy of the Father's and the child's itinerary;
(b) Copies of all tickets to facilitate the Father's and the child's travel; and
(c) A copy of the travel insurance policy for the Father and the child; and
the Mother travel to the mid-year changeover destination to collect the child.
6. The Father or the Mother, as the case may be pursuant to these orders, accompany X at all times during the child's travel when she is in their care pursuant to these Orders.
7. The Mother notify the Father 72 hours prior to the Father and X depart from Australia:
(a) A copy of the Mother's and X’s itinerary;
(b) Copies of the tickets that facilitate the Mother's and X’s travel whilst the child is in her care;
(c) Addresses at which X will be staying (together with relevant dates) whilst X is in her care; and
(d) A copy of the travel insurance policy for the Mother and X.
8. The Father deliver the child to the Mother at the mid-year contact destination at the commencement of the mid-year contact period and the Mother return the child to the Father at the mid-year contact destination at the conclusion of the mid-year contact period.
9. At the conclusion of the mid-year contact period the Mother will hand to the Father, (solely for safe keeping and not to be released to any other person unless agreed in writing by text message or email), X’s Australian and Country D passports.
10. To facilitate X’s travel to spend time with the Mother during the end of year contact period the following shall apply:
(a) The Father will travel with the child to Country U, Country V, or such other destination, the parties having agreed previously in writing, and in default of agreement inwriting by text message or email reached by 4.00pm AEST 30 September in each year, Country B International Airport (“the agreed end of year changeover destination’) and provide to the Mother 72 hours prior to departure from Australia:
(i) A copy of the itinerary of the Father and X; and
(ii) Copies of the tickets that facilitate the travel of the Father and X.
(iii) A copy of the travel insurance policy for the Father and X.
(b) The Mother travel to the agreed end of year changeover destination and collect the child;
(c) The Father and the Mother, as the case maybe pursuant to these orders, accompany X at all times during the child's travel when she is in his or her care pursuant to these Orders;
(d) The Mother notify the Father 72 hours prior to the Father and X’s departure from Australia:
(i) A copy of the Mother's and X’s itinerary;
(ii) Copies of tickets that facilitate the Mother's and X’s travel whilst the child is in her care;
(iii) Addresses at which the child will be staying (together with relevant dates) whilst the child is in her care; and
(iv) A copy of the travel insurance policy for the Mother and X.
11. The Father deliver the child to the Mother at the agreed end of year changeover destination at the commencement of the end of year contact period and the Mother return the child to the Father at the agreed end of year changeover destination at the conclusion of the end of year contact period.
12. At the conclusion of the end of year contact period the Mother will hand to the Father, for his safe keeping and not to be released to any other person unless agreed in writing by email or text message, X’s Australian and Country D passports.
Passports
13. The Father and the Mother do all things and sign all documents as may be necessary from time to time to renew Australian and Country D passports for the child and all other relevant travel documents which may be required and share equally all costs associated with same.
14. The Father and the Mother respectively be permitted to take the child overseas for holidays to countries that are signatories to the Hague Convention on Civil Aspects of International Child Abduction ("Convention Countries") during the period they are in each parent's respective care provided always that they provide 21 days notice in writing of their intention to travel with the child together with the child's itinerary, contact details, flights and addresses at which the child and parent will be residing.
15. In the event the Mother continues to reside in Country B or any other country she wishes to reside in;
(a) all travel undertaken by the child to and from the mid-year and agreed end of year changeover destinations will be at the expense of the Father; and
(b) all travel undertaken by the child from and to the mid-year and agreed end of year changeover destinations, within the Country B and Convention Countries, will be at the expense of the Mother.
School
16. X remain enrolled in W School (“the child’s school”) and each parent is hereby restrained from enrolling the child in any other school without the prior written consent of the other parent.
17. In relation to the child's school and education the Father and the Mother do all acts and things to cause and ensure that each parent be authorised and permitted:
(a) To access all information pertaining to the child's school via the school's online portal including but not limited to newsletters, reports, school activities, school trips;
(b) To attend parent/teacher interviews and/or discuss the child's progress with her teachers and/or principal; and
(c) To attend any and all school functions and events relating to the child; and the parents otherwise keep each other informed of all matters relating to the child's school and education which are not otherwise available through the school portal known as Compass.
Child’s phone/video contact with the parents
18. During the time the child is in the care of the Father and Mother respectively the child be permitted to have telephone and/or video contact with the other parent at 7am local time for the child on each second day or such other time agreed by the Father and Mother in writing.
19. The child be permitted by each parent to make contact with the other parent by telephone and/or video and or email contact at all reasonable times.
Specific Issues
20. The Father and the Mother each notify the other immediately by text message of any accident, serious injury or illness suffered by the child whilst in their care.
21. The Father and the Mother each provide to the other their current:
(a) residential address;
(b) any landline phone number;
(c) mobile telephone number; and
(d) private email address.
Injunctions
22. The Father and the Mother respectively be and are hereby restrained from denigrating the other parent and/or their family members or friends to or within the hearing of X.
FINAL PROPERTY ORDERS
23. The Applicant within 90 days (“the settlement date”) transfer to the Respondent at his expense of all her right, title and interest in G Street, Suburb H, Victoria ("the Suburb H home") (Certificate of Title Volume … Folio …) ("the Transfer").
24. That contemporaneously with the Transfer the respondent pay to the applicant $632,972 (‘the payment’).
25. Contemporaneously with the transfer the Respondent discharge and refinance the mortgage registered number … and pay, indemnify and keep indemnified the Applicant in respect of all outgoings and liability in respect of the Suburb H home.
26. Liberty to apply on an urgent basis for a 106A Order and costs in the event that either party fails or refuses to sign documents to give effect to these Orders.
27. That otherwise the applicant retain all of her right title and interest in the estate of Mr AA Deceased in 2019 including any right title and interest as trustee to the interest of the child X in same.
28. The parties otherwise retain all other property and financial resources in their respective possession, or to which they are entitled, and indemnify the other in regard to any liability relating to any property he or she retains.
Pending the transfer of the property or the completion of the default sale
29. Pending the completion of the sale of the Suburb H property, the husband shall pay all outgoings in relation to the Suburb H property including all mortgage instalments, rates, insurances and taxes as and when they fall due.
30. The Husband is restrained from further encumbering the Suburb H Property without the consent in writing of the wife.
31. The parties hold their respective interests in the Suburb H Property upon trust pursuant to these Orders.
Default of sale
32. The parties be and are directed to bring in agreed minutes of orders that deal with a default sale of the Suburb H home in the event the payment is not made 90 days from this day within 14 days and in default of agreement each party file the proposed default order as pressed by him or her together with a short written submission not exceeding one (1) page.
Superannuation
33. The parties in their capacity as directors of Neuman & Hall Super Pty Ltd as trustee of the Neuman Hall Super Fund must do all acts and things and must sign all documents necessary, including instructing Z Group or such other person agreed between the parties, to cause the Neuman Hall Super Fund to be compliant with the Superannuation Industry (Supervision) Regulations 1994, at the fund's expense.
34. In the event that the Australian Taxation Office imposes penalties for non-compliance of the Neuman Hall Super Fund, the parties must do all acts and things necessary to cause this fund to forthwith pay the penalties imposed by the ATO.
35. The husband and the wife in their capacity as directors of Neuman & Hall Super Pty Ltd as trustee of the Neuman Hall Super Fund, hereby acknowledge that the Neuman Hall Super Fund has been accorded procedural fairness in relation to the making of these orders.
36. Paragraphs 14 and 15 below have effect from the operative time, being four days after service of these orders on Neuman & Hall Super Pty Ltd as trustee of the Neuman Hall Super Fund, whilst noting that service must occur after the Neuman Hall Super Fund is made compliant with the Superannuation Industry (Supervision) Regulations 1994, pursuant to paragraph 10 above.
37. In accordance with section 90XT of the Family Law Act 1975:
(a) Whenever a splitable payment becomes payable out of the husband's interest in the Neuman Hall Super Fund, the wife must be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation Regulations) 2001, using the base amount specified in the following calculation; and
(b) The husband's entitlement in the Neuman Hall Super Fund be correspondingly reduced.
The base amount is calculated as follows:
Base amount = (A + B) x 50% - B, where -
A = the husband's member benefit balance at the operative time; and
B = the wife's member benefit balance at the operative time,
And acknowledging that the purpose of these orders is to equalise the parties' entitlements in the Neuman Hall Super Fund.
38. The parties in their capacity as directors of Neuman & Hall Super Pty Ltd as trustee of the Neuman Hall Super Fund must do all such acts and things and must sign all such documents as may be necessary to calculate, in accordance with the requirements of the Family Law Act 1975, the entitlements created by paragraph 14 of these orders.
39. Following the superannuation split pursuant to the preceding orders, the parties forthwith must do all things necessary to rollover or transfer the wife’s interest in the Neuman Hall Super Fund to a superannuation fund of her choice, in accordance with Regulation 7A, 12 of the Superannuation Industry (Supervision) Regulations 1994.
40. Forthwith following the transfer of the parties' superannuation entitlements in the Neuman Hall Super Fund, the parties must do all acts and things and must sign all such documents, at the parties' equal shared expense, to -
(a) Dissolve the Neuman Hall Super Fund; and
(b) Wind up Neuman & Hall Super Pty Ltd.
41. The parties must sign all documents and must do all things necessary to give effect to the terms of these Orders.
42. That within thirty (30) days from the date of these orders, the wife shall do all acts and things and sign all such documents as may be required to resign as director and shareholder of Neuman & Hall Pty Ltd.
43. In the event that the husband does not elect in writing within 14 days to retain Neuman & Hall Pty Ltd, then:
(a) That within thirty (30) days from the date of these Orders, the parties in their respective capacities as directors of the bare trust shall do all acts and things necessary, including signing all necessary documents to:
(i) Realise assets in order to wind up and dissolve Neuman & Hall Pty Ltd; and
(ii) Sign all necessary documents to cause the deregistration of Neuman & Hall Pty Ltd at the parties’ equal expense.
Indemnity (mutual)
44. That unless otherwise specified in these Orders and/or agreed in writing between the parties 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) in the possession of such party as at this date. The contents of the Suburb H home are deemed to be in the possession of the Father;
(b) monies standing to the credit of the parties in any joint bank account are to be paid to the husband and the account forthwith closed;
(c) all insurance policies remain the sole property of the beneficiary named hereunder;
(d) 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;
(e) any joint tenancy is hereby expressly severed.
General
45. Save as to the issue of the provisions of a default sale of the Suburb H property in the event the payment is not made within the specified time, all extant applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A. Pursuant to ss.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 Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law 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
Legal Principle Established
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