FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEDLUND & HEDLUND | [2020] FCCA 2578 |
| Catchwords: FAMILY LAW – Parenting and Property – final hearing – 10 year cohabitation – two children now 8 and 7 – elder child diagnosed with autism and intellectual disability with high needs – younger child diagnosed with autism but lower needs – father engaged in long term emotional abuse constituting family violence – post separation father encouraged elder child to assault mother and abscond to father’s house – damaged elder child’s relationship with primary carer mother – repeatedly put child’s life at risk when absconding – put younger child at risk from elder child’s outbursts – callous disregard for children’s physical safety and emotional needs – likely that if father not allowed to influence eldest child will quickly settle – supervision not a long term option – Parenting Orders – no time and no communication and consequential orders – Property – $1 million pool – mother brought in major asset – mother cannot work due to children’s needs – on basis of found parenting orders mother’s submission 75/25 – father’s submission 70/30 – mother unlikely to work for a considerable time – Property Orders – 75/25 to mother. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 65AA, 60CC, 60CC(3), 60CG, 68B, 68C 69ZL, 75(2), 79, 79(4), 81, 106A Evidence Act1995 (Cth), ss.79, 140(1) 140(2) |
| Cases cited: B & B (1993) FLC 92-357 Stott & Holgar and Anor [2017] FamCAFC 152 |
| Applicant: | MS HEDLUND |
| Respondent: | MR HEDLUND |
| File Number: | SYC 2529 of 2017 |
| Judgment of: | Judge B Smith |
| Hearing dates: | 1 October 2019, 2 October 2019, 3 October 2019, 4 October 2019 |
| Date of Last Submission: | 4 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Spain |
| Solicitors for the Applicant: | McDermott Lawyers |
| The Respondent appeared in person |
| Solicitors for the Independent Children's Lawyer: | Mark Macdiarmid Family Law Specialist |
ORDERS
Parenting
All prior parenting Orders are discharged.
The mother, Ms Hedlund born in 1970, shall have sole parental responsibility for the children X born in 2011 and Y born in 2013 (“the children”).
The children shall live with the mother.
The children shall spend no time with and have no communication with the father Mr Hedlund born in 1976.
Order 4 above may be varied by the mother at her absolute discretion and in writing as follows:
(a)If, and only if, the mother considers it to be in the children’s best interests, then one or both of the children may communicate with and or spend time with the father in accordance with any agreement reached between the parents in writing.
(b)This Order does not impose on the mother any obligation to engage in any discussions with the father about, nor to enter into any agreement with the father about, the children…
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- AGLC
- HEDLUND & HEDLUND [2020] FCCA 2578
- Case
- [2020] FCCA 2578
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the best interests of the children, particularly in light of allegations of long-term emotional abuse and family violence by the father, including encouraging the elder child to assault the mother and abscond, thereby endangering both children. The court also had to consider the mother's submission for a 75/25 property split, arguing she brought in a major asset and was unable to work due to the children's needs, contrasted with the father's submission for a 70/30 split.
In reaching its decision, the court found that the father's conduct, including his encouragement of the elder child to assault the mother and abscond, had damaged the child's relationship with the primary carer and put both children at risk. The court concluded that supervision was not a long-term option and that the elder child would likely settle quickly if the father's influence was removed. Applying these findings to the parenting orders, the court discharged all prior orders and granted the mother sole parental responsibility, with the children to live with her. Crucially, the court ordered that the children spend no time with and have no communication with the father, with any variation to be at the mother's absolute discretion and only if she considered it to be in the children's best interests. The court also issued an injunction restraining the father from contacting the mother or children and from approaching them or their places of residence or attendance. Regarding property, the court ordered a 75/25 split in favour of the mother, reflecting her contribution of a major asset and her inability to work due to the children's needs.
Orders
Orders of the court
Parenting
1.
All prior parenting Orders are discharged.
2.
The mother, Ms Hedlund born in 1970, shall have sole parental responsibility for the children X born in 2011 and Y born in 2013 (“the children”).
3.
The children shall live with the mother.
4.
The children shall spend no time with and have no communication with the father Mr Hedlund born in 1976.
5.
Order 4 above may be varied by the mother at her absolute discretion and in writing as follows:
(a) If, and only if, the mother considers it to be in the children’s best interests, then one or both of the children may communicate with and or spend time with the father in accordance with any agreement reached between the parents in writing.
(b) This Order does not impose on the mother any obligation to engage in any discussions with the father about, nor to enter into any agreement with the father about, the children communicating with or spending time with him.
(c) This Order does not give the father any right of enforcement.
6.
Each parents shall keep the other advised at all times of an email address by which they can communicate about the children, which email may be specified as one created solely for this purpose.
(a) This Order does not oblige the mother to check any such email address if she does not wish to do so.
7.
The Independent Children's Lawyer’s appointment continue for two years.
8.
The children's treating psychologists or counsellors be asked by the Independent Children's Lawyer to explain these Orders to the children.
9.
Pursuant to section 68B of the Family Law Act 1975, Mr Hedlund born in 1976 be restrained by injunction from:
(a) contacting or attempting to contact Ms Hedlund born in 1970 by any means, including through a third party, except only that he may seek to communicate with her in a respectful manner about the children solely pursuant to the email address provided by her pursuant to Order 6 above;
(b) contacting or attempting to contact X born in 2011, by any means, including through a third party;
(c) contacting or attempting to contact Y born in 2013, by any means, including through a third party;
(d) approaching or coming within 100 metres of Ms Hedlund, X, or Y,
(e) approaching or coming within 100 metres of any place where Ms Hedlund, X, or Y might reside from time to time;
(f) approaching or coming within 100 metres of any place where X or Y might attend day care or school; and/or
(g) approaching or coming within 100 metres of any place where Ms Hedlund might work from time to time.
10.
Pursuant to section 68C the injunction in Order 9 above pursuant to section 68B of the Family Law Act 1975 (Cth), is for the personal protection of Ms Hedlund, X, and Y.
11.
If a Police Officer, which includes a member of the New South Wales Police Force, believes on reasonable grounds that Mr Hedlund, at who the injunction is directed, has breached the injunction they may arrest them without warrant.
12.
A copy of these Orders may be given to any school, care facility or other place where the children attend and to their treating practitioners.
Property
13.
Within no less than 29 days and no more than 42 days the parties shall sign all documents and instruments and do all things necessary to transfer:
(a) To the father the sole ownership of:
(i) The remains of the proceeds of sale of B Street, Suburb C, held in a controlled monies account managed by Coleman Greig Lawyers Pty Ltd, being item 1 of the joint balance sheet;
(ii) Any amount remaining in the joint Commonwealth Bank Accounts ending ...74 and ...4 and the D Bank Cash Management Account ending ...24, being items 3, 4 and 5 of the joint balance sheet, and to close those accounts.
(b) To the mother the sole ownership of:
(i) The 6000 credits in E Timeshare being item 13 in the joint balance sheet.
14.
A total based amount of $131,839 of the father’s superannuation be allocated to the mother in accordance with Orders 14 and 15 hereof.
15.
A base amount of $100,000 is allocated, as required by section 90MT(4) of the Family Law Act 1975 (Cth), to Ms Hedlund born in 1970 out of the interest of Mr Hedlund born in 1976 in D Bank Super Accumulator:
(a) That, in accordance with section 90MT(4) of the Family Law Act 1975 (Cth):
(i) Ms Hedlund is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount allocated in this Order; and
(ii) Mr Hedlund’s entitlement, and the entitlement of such other person to whom a splittable payment may be made out of Mr Hedlund’s interest in D Bank Super Accumulator (account number ...09) is correspondingly reduced.
(b) That, the trustee of the D Bank Super Accumulator ("the trustee") shall do all such acts and things and sign all such documents as may be necessary to:
(i) calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, the entitlement for Ms Hedlund by this Order; and
(ii) pay the entitlement whenever the trustee makes a splittable payment of Mr Hedlund’s interest in D Bank Super Accumulator (account number ...09).
(c) That having been accorded procedural fairness in relation to the making of this Order, this Order binds the trustee of D Bank Super Accumulator.
(d) That this Order have effect from the operative time and the operative time is the fourth business day after the Final Order is served on the trustee.
16.
A base amount of $31,839 is allocated, as required by section 90MT(4) of the Family Law Act 1975 (Cth), to Ms Hedlund out of the interest of Mr Hedlund with Super Fund F – G Bank Plan:
(a) That, in accordance with section 90MT(4) of the Family Law Act 1975 (Cth):
(i) Ms Hedlund is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount allocated in this Order; and
(ii) Mr Hedlund’s entitlement, and the entitlement of such other person to whom a splittable payment may be made out of Mr Hedlund’s interest in Super Fund F – G Bank Plan (account number ...80) is correspondingly reduced.
(b) That the trustee of the Super Fund F – G Bank Plan ("the trustee") shall do all such acts and thins and sign all such documents as may be necessary to:
(i) calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, the entitlement for Ms Hedlund by this Order; and
(ii) pay the entitlement whenever the trustee makes a splittable payment of Mr Hedlund’s interest in Super Fund F – G Bank Plan (account number ...80).
(c) That having been accorded procedural fairness in relation to the making of this Order, this Order binds the trustee of Super Fund F – G Bank Plan.
(d) That this Order have effect from the operative time and the operative time is the fourth business day after the Final Order is served on the trustee.
17.
Within 42 days of the making of these Orders the mother, and to the extent necessary the father, will sign all documents and instruments and do all things necessary to list for sale the property at H Street, Suburb J at a listing price agreed with the real estate agent, whom the mother shall solely appoint, and shall proceed to sell the property at a sale price agreed with the real estate agent, and following such sale the proceeds of sale shall be applied as follows:
(a) In payment of the adjustment of rates on settlement;
(b) In payment of agent's commission on sale;
(c) In payment of all legal and all other proper costs of sale;
(d) In payment to the Commonwealth Bank of Australia in and of a sum sufficient to discharge the registered mortgage over the property;
(e) In payment to the parties of the residue, to give effect to a distribution of the parties property as determined as to 75% to the mother and 25% to the father, in accordance with the Court’s Reasons for Judgment of 14 September 2020 and these Orders and assuming:
(i) the value of items 1, 3, 4 and 5 of the joint balance sheet are as they were determined to actually be when transferred to the father;
(ii) the values of items 6-20 of the joint balance sheet are as set out in the judgment; and
(iii) the values of items 27-34 of the joint balance sheet are as set out in the judgment, subject to the value of the $131,839 base sums transferred to the wife by these orders being assumed to be her interest.
18.
In the event the property does not sell by private sale within 3 months from the date of this Order, then the mother shall sign all documents and instruments and do all things necessary to list the property for sale by public auction, with an auction agent whom the mother shall solely appoint, with the reserve price to be advised by that auction agent, and shall proceed to an auction within no more than 5 months from the date of these Orders, and following such sale the proceeds of sale be applied as provided for in Order 16 herein.
19.
In the event that Order 17 herein operates and the property does not sell by public auction, then the property shall be resubmitted for sale by public auction with a reserve price no less than 5% lower within a further 6 weeks, and that process shall continue every 6 weeks until the property is sold, and following such sale the proceeds of sale be applied as provided for in Order 16 herein.
20.
Otherwise than as provided for in these Orders, each of the parties shall be and are hereby declared to be the sole and absolute owners at law and in equity of all items of property presently in each party's possession, custody or control.
21.
In the event that either party fails, neglects or refuses to sign or execute any deed, document or instrument required by or to give effect to these Orders, then pursuant to section 106A of the Family Law Act 1975 (Cth), that the Registrar of the Family Court of Australia, shall be and is hereby authorised, empowered and directed to sign and execute any deed, document or instrument in place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to the same.
22.
All extant Applications, including Contravention Applications, be dismissed.
23.
Within 28 days, any party or the Independent Children’s Lawyer who seeks costs is to file an Application in a Case together with and Affidavit in support of the Orders sought by them.
NOTES
24.
A Form of this Personal Protection Order will be published with the Orders.
25.
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 those 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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