JAMISON & JAMISON

[2018] FCCA 2528

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAMISON & JAMISON [2018] FCCA 2528

Catchwords:
FAMILY LAW – Parenting and property.

Legislation:

Family Law Act 1975

Applicant: MS JAMISON

Respondent: MR JAMISON

File Number: SYC 206 of 2018

Judgment of: Judge Henderson

Hearing date: 16 August 2018

Date of Last Submission: 16 August 2018

Delivered at: Sydney

Delivered on: 16 August 2018

REPRESENTATION

Solicitors for the Applicant: Paltos Family Lawyers

Solicitors for the Respondent:	Lex Fori Lawyers
Solicitors for the Independent Children's Lawyer:	Morton Family Lawyers

ORDERS

1. Leave is granted to the parties to make an oral application in relation to property.

2. By consent, final property orders are made in accordance with the document marked “Exhibit 1”, dated 16 August 2018, as attached hereto.

3. The mother have sole parental responsibility for the child [X] born 2006.

4. The child live with the mother.

5. The father spend no time with the child.

6. The father is restrained from approaching the child or attending, approaching the child’s school, after school care or extra-curricular activities.

7. The Independent Children’s Lawyer’s application for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Jamison & Jamison is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Exhibit 1: 16 August 2018

FAMILY LAW ACT 1975

CONSENT FINANCIAL ORDERS

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY  File No. SYC206/2018

Applicant
BETWEEN  Ms Jamison

Wife

Respondent
AND  Mr Jamison

Husband

DEFINITIONS

In these Consent Orders the following definitions shall apply:

1.”Wife” means Ms Jamison.
2. “Husband” means Mr Jamison.

3. “Trust Account” means the trust account of Mr D.

4. “Proceeds of sale” means the proceeds received by the Husband and the Wife from the sale of their former matrimonial home at Property A, NSW currently held in the trust account.

5. “The Wife’s Superannuation Interest” means the Wife’s superannuation interest with Super Fund 2.

6. “The Husband’s Superannuation Interest” means the Husband’s superannuation interest with Super Fund 1.

FINANCIAL ORDERS

BY CONSENT IT IS ORDERED: -
1. That the parties shall within 14 days of the date of these Orders, direct Mr D to disperse the proceeds of sale retained by them in their trust account in the sum of $367,488.60 in the following manner and priority:-

1.1. To Mr D in the sum of $385.00.

1.2. To the wife, the sum of $236,570.04

1.3. To the wife, the sum of $50,000 payable by the husband to the wife pursuant to a Child Support Agreement executed by the parties of the date the parties signed these Consent Orders.

1.4. To the husband, the balance then remaining in the sum of $80,533.55.

SUPERANNUATION SPLITTING ORDERS

2. That in accordance with s.90MT(4) of the Family Law Act 1975, a base amount of $34,558.93 is allocated to the wife out of the husband’s interest in the Super Fund 1.

3. That in accordance with s.90MT(1)(a) of the Family Law Act 1975:

3.1. The wife (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and

3.2. The entitlement of the husband, in the Super Fund 1 (or the entitlement of such other person who becomes entitled to receive a payment out of Member Spouse’s superannuation interest) is correspondingly reduced by force of this Order.

4. That the trustee of the Super Fund 1 (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

4.1. Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the wife in the immediately preceding clause of this Order; and

4.2. Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the Super Fund 1.

5. That this Order has effect from the operative time and the operative time is 4 days from the date of these Orders.

6. That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”) the wife shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Non-Member Spouse’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the Non Member Spouse’s choosing in accordance with the SIS Regulations.

DECLARATION

7. Then other what is provided by these Orders each party is to obtain all items of personal property in their custody or control at the date of the Orders.

NOTATIONS

That the Court notes that:

a). The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and

b). Any payments from the husband’s superannuation interest in the Super Fund 1 made after the trustee has created a new interest in the wife’s, name in the Super Fund 1 are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001.

c). The parties have executed a Child Support Agreement providing for the payment by the husband to the wife in the sum of $50,000 by way of lump sum child support in respect of [X] born on 2006.

d). Prior to making these Orders, in November 2017 the husband and the wife each received the sum of $81,346.93 from the proceeds of sale and that the balance and the amounts to be distributed pursuant to Order 1 represent the balance of the proceeds of sale.

e). That the wife is to obtain upon agreement between the parties 60% of the net proceeds thereof and the husband the remaining 40%.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 206 of 2018

MS JAMISON

Applicant

And

MR JAMISON

Respondent

REASONS FOR JUDGMENT

1. In this matter, I am asked to make consent orders. I accept entirely that Ms Morton has not been able to see the child, or review the material. That she has just come on board, and instantly, there are consent orders being made.

2. However, I have read this material. I have read this file and that is why I appointed an Independent Children’s Lawyer now, Ms Morton, because of the serious concerns I have about this father’s conduct, behaviour, attitude; his extremely poor behaviour towards the mother in front of the child; the fear he has engendered in his daughter by his violent, aggressive, coercive and thuggish behaviour.

3. Despite my having made consent orders on 14 March 2018 that the father undergo a range of tests because of the mother’s allegations supported by the father’s own conduct that he abuses drugs and alcohol, that the mother have sole parental responsibility for the child; he spend no time with the child; he was restrained from approaching the home, place of extracurricular activity or school, he submit to a random chain of custody test no more than once a month, and he undertake the test within 24 hours, and he be tested for marijuana, opiates, methamphetamines, benzodiazepines and amphetamines; he tell the mother his health practitioners; the mother have leave to issue subpoenas and I noted he intended to obtain a report from his treating psychiatrist, Dr C, nothing has happened except that the mother continues to care for the child as she has done throughout her life.

4. I would have struggled to make any order that this father spend time with the child having regard to his own evidence, his own conduct and his agreement on the last occasion not to spend time with his child, not to approach her home and that the mother have sole parental responsibility. All I am being asked to do today is make by way of final orders the interim orders the father consented to on 14 March 2018, and I note he is represented. I will make those orders. They are clearly in the child’s best interests.

5. I must rebut the presumption of equal shared parental responsibility given the extreme violence, aggressive behaviour and lack of child focused conduct of the husband. The violence alone is enough to rebut that presumption therefore I need not consider an order for equal time or significant substantial time. There can be no order for time. The father has failed to engage. He agreed on the last occasion he should spend no time with his daughter, and the time he has spent with his daughter, as set out in the mother’s affidavit, has caused this child extreme emotional distress such that she herself has to attend a psychologist.

6. This child cannot benefit from the relationship, let alone a meaningful relationship, with her father because of his lack of insight, his behaviour and his conduct. The child has been subjected to violence, abuse and poor behaviour in her father’s care. Her wishes are to spend no time with her father, and I accept those wishes. She is soon to be 12.

7. The father demonstrates no insight into the needs of the child, no capacity to provide for her psychological, emotional or educational needs, and he has effectively left the sole care of this child to the mother all her life. His financial support of the child is also woeful and indicates his scant regard for his role and his responsibilities as a parent to the child. He shows, indeed, no understanding of those needs.

   Therefore, I will make, effectively by consent, the minute of order the parties have forwarded to me today, being that:

   a)The mother have sole parental responsibility for the child [X], born 2006;

   b)The child live with her mother;

   c)The father is to spend no time with the child;

   d)The father is restrained from approaching [X] or attending or approaching [X]’s school, afterschool care or place of extracurricular activity she may attend from time to time.

8. I note an application for the Independent Children Lawyer’s costs are made. I have to be satisfied I should exercise my discretion. This matter has resolved by way of consent, and I do not see I would exercise my discretion to make a costs order in these circumstances. So I dismiss that application.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  12 September 2018