FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jewell & Jewell [2021] FedCFamC2F 5
File number(s): MLC 13510 of 2020 Judgment of: JUDGE BENDER Date of judgment: 26 July 2021 Catchwords: FAMILY LAW – PARENTING – the Mother’s application for parenting orders – the Father has not filed any material and has not participated in proceedings save for one appearance at the first return date – the children have spent limited time with the Father post-separation – the Mother makes allegations that the Father uses illicit substances – leave granted to proceed on an undefended basis.
HELD – orders made for the children to live with the Mother and spend time with the Father as agreed between the parties – the time the children spend with the Father be subject to such conditions as determined by the Mother – the Mother be authorised to travel interstate and overseas with the children without the Father’s consent – the Mother may apply for passports for the children without the Father’s consent.
FAMILY LAW – PROPERTY – the Wife’s application for property orders – the Husband has not filed any material and has not participated in proceedings save for one appearance at the first return date – the Father is not paying child support – the Father has caused damage to the former matrimonial home – the matter proceeded on an undefended basis.
HELD – orders made for the former matrimonial home in joint names to be sold – the Wife named Trustee for Sale for the real property – the proceeds of sale to be divided as to 70% to the Wife plus a sum to represent 70% of repair and rubbish removal costs relating to the Husband’s damage – the parties share equally in mortgage repayments and outgoings until the real property is sold – the parties otherwise retain assets in their name and possession including motor vehicles – there be a superannuation split to the Wife in the sum of $37,992 – orders for the Husband to pay the Wife’s costs of the proceedings in the sum of $5,042
Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2), 79(4), 117(1), 117(2), 117(2A)
Cases cited: Stanfordv Stanford [2012] HCA 52
Hickey& Hickey [2003] FamCA 442
Bevan & Bevan [2013] FamCAFC 116Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 26 July 2021 Place: Melbourne Solicitor for the Applicant: Ms Song - Rayner Song Family Lawyers Counsel for the Respondent: The Respondent did not appear ORDERS
MLC 13510 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JEWELL
Applicant
AND: MR JEWELL
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
26 JULY 2021
THE COURT ORDERS THAT:
1.All previous orders be discharged.
Parenting
2.The Mother have sole parental responsibility of the children of the marriage, namely:
(a)X born 2006 (“X”);
(b)Y born 2009 (“Y”); and
(c)Z born 2011 (“Z”).
3.X, Y and Z live with…
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- [2021] FedCFamC2F 5
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CaseChat Overview and Summary
The court had to decide whether to grant sole parental responsibility to Ms Jewell, to establish a parenting plan for the children, and to address the Mother's concerns regarding the Father's substance use. The court also needed to determine property division, including the sale of the former matrimonial home, division of proceeds, and allocation of assets and liabilities. The case proceeded on an undefended basis.
The court determined that Ms Jewell should have sole parental responsibility for the children, who would live with her but spend time with the Father as agreed between the parties, subject to conditions set by Ms Jewell. The court also authorized Ms Jewell to travel with the children without needing the Father's consent and to apply for passports for the children without his consent. Regarding property, the court ordered the sale of the former matrimonial home, with proceeds divided 70% to Ms Jewell and 30% to Mr Jewell, after accounting for mortgage repayments, repair costs, and other expenses. The court further ordered that each party retain their respective assets and liabilities, and that Mr Jewell pay Ms Jewell's costs of the proceedings. The court's comprehensive orders provided a clear framework for the future parenting arrangements and property division between the parties.
Orders
Orders of the court
MLC 13510 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS JEWELL
Applicant
AND:
MR JEWELL
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
26 JULY 2021
THE COURT ORDERS THAT:
1. All previous orders be discharged.
Parenting
2. The Mother have sole parental responsibility of the children of the marriage, namely:
(a) X born 2006 (“X”);
(b) Y born 2009 (“Y”); and
(c) Z born 2011 (“Z”).
3. X, Y and Z live with the Mother and spend time with the Father as agreed between the parties and subject to such conditions as determined by the Mother.
4. Each parent advise the other of any change of telephone number, email address or residential address within forty-eight (48) hours of such change occurring.
5. Each parent inform the other as soon as practicable of any serious injury or illness sustained by one or more of X, Y and Z and further provide particulars of any treatment required or received by X, Y and/or Z together with the name and address of the treatment provider.
6. Each parent is hereby authorised to obtain from X, Y and Z’s childcare, kindergarten and/or school all notices, letters, reports and invitations and to attend parent/teacher interviews or other activities to which parents are ordinarily invited.
7. Each parent is permitted to liaise with and attend upon X, Y and Z’s medical practitioners and other treating health professionals to obtain information about X, Y and Z’s medical care and to obtain copies of X, Y and Z’s medical documents at their own expense.
8. The Mother is permitted to travel interstate or overseas with one or more of X, Y and Z without first needing to obtain permission of the Father.
9. The Mother is authorised to apply for and receive an Australian passport for X, Y and Z without first obtaining the written consent of the Father.
Property
10. The Husband, his agents, and servants be restrained from dealing with the former matrimonial home at B Court, Town C in the State of Victoria (“the Town C property”) otherwise than in accordance with these Orders.
11. The Wife, namely Ms Jewell (hereafter “the Trustee”) be appointed pursuant to s.80(1)(e) and/or s.80(1)(k) of the Family Law Act 1975 (Cth) as Trustee for Sale of the Town C property and that the said property vest in the Trustee for the purposes of sale.
12. The Trustee is empowered to take possession of the Town C property and require vacant possession in order to effect a sale of the said property.
13. Without limiting the Trustee’s powers under the terms of this Order, the Trustee is empowered to do all things and sign all documents necessary to effect a sale of the said property including but not limited to:
(a) determining whether the sale be by private treaty or auction;
(b) determining the real estate agent with whom to list the property;
(c) determining the conveyancer or lawyer with whom to carry out the settlement including completing client authorisation;
(d) determining the listing price from time to time, or the reserve price in the event of sale by auction;
(e) determining all terms of sale;
(f) completing the Section 32 Vendor Statement and Contract of Sale;
(g) completing discharge of mortgage documents;
(h) completing all documents in PEXA including Transfer of Land; and
(i) completing State Revenue Office documents.
14. On settlement of the sale of the Town C property the net proceeds of sale, after normal adjustments at settlement as defined in the standard REIV contract of sale, the Trustee do all acts and sign all documents necessary to direct the sale proceeds to be paid in the following manner and priority:
(a) to discharge the mortgage registered in favour of Westpac Banking Corporation (“the Town C mortgage”) and any other encumbrances registered against the Town C property;
(b) to pay all expenses of and incidental to the sale, including the estate agent's commission, advertising fees, legal costs on the sale and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties by written agreement or incurred by the Trustee);
(c) to pay any adjusted municipal and water rates outstanding with respect to the Town C property; and
(d) To divide the balance as follows:
(i) 70% to the Wife plus:
A. a sum for reimbursement of 70% of repair costs to the Town C property for damage already caused by the Husband with the sum capped at $8,950.00 and 70% of the costs of removal of rubbish left by the Husband capped at $2,864.99 (being $8,270.49);
B. a sum to reimburse the Wife for the Husband’s half share of mortgage and outgoings in the event he defaults on Order 15(b); and
C. the Wife’s costs payable by the Husband pursuant to Order 30 herein in the sum of $5,042.00.
(ii) 30% to the Husband less the amounts referred to in Order 14(d)(i)(A), (B) and (C) herein.
15. Pending Order 14 being effected:
(a) the Wife have sole right to use and occupy the property;
(b) the parties are jointly responsible for and each party indemnifies the other against the mortgage repayments, rates, and other outgoings of the Town C property;
(c) the Wife maintain comprehensive home and contents insurance for the Town C property at the parties’ joint expense;
(d) the Husband is prohibited by injunction from intentionally causing damage to the Town C property and, in the event that further damage is caused by the Husband, the Husband’s portion of the net sale proceeds at Order 14(d)(ii) herein be further reduced by the amount required to repair the damage;
(e) the parties hold their respective interests in the Town C property upon trust for one another pursuant to these Orders;
(f) each party is prohibited by injunction from further encumbering the Town C property without the consent in writing of the other party or the existing mortgagee; and
(g) each party is prohibited from drawing down on the Town C property mortgage or increasing the balance of the Town C property mortgage without the other parties’ consent, save for the accrual of ordinary interest and ordinary bank charges.
16. The Wife retain for her sole use and benefit the following:
(a) funds in any bank accounts held in her sole name or jointly with another;
(b) her D motor vehicle;
(c) her personal belongings and effects;
(d) all furniture and contents located in the Town C property, save for the Husband’s personal belongings; and
(e) her superannuation benefits.
17. The Husband retain for his sole use and benefit the following:
(a) funds in any bank accounts held in his sole name or jointly with another;
(b) his E motor vehicle; and
(c) his personal belongings and effects.
18. The Wife remain solely liable for and indemnify the Husband against all credit card debts, personal loans and any other debts in her sole name or jointly with another person.
19. The Husband remain solely liable for and indemnify the Wife against all credit card debts, personal loans and any other debts in his sole name or jointly with another person.
20. Having been accorded procedural fairness, Orders 21 to 22 is binding on the Trustee of the F Super Fund (“the Fund”).
21. Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the Husband’s interest in the Fund, the Wife or, on her death, the Wife’s legal personal representative shall be entitled to be paid by the trustee of the Fund the amount (if any) calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”), using an agreed base amount of $37,992 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders.
22. The operative time for the purposes of Order 21 is at the beginning of the day on the fourth business day after these Orders have been served on the Trustee.
23. Until:
(a) the establishment of a separate superannuation interest in the name of the Wife in the Fund; or
(b) the transfer or rolling over into another superannuation fund as nominated by the Wife of the payment split created by these Orders; or
(c) the Wife satisfies a condition of release and is paid the payment split which was created by Order 21; or
(d) the Wife exercises a waiver of rights within the meaning of section 90XZA of Family Law Act 1975 (Cth) in relation to the payment split created by Order 21;
the Husband is prohibited from doing any acts or permitting any acts to be done that may render any part of his interest in the Fund a "non splittable" payment within the meaning of Regulation 12 or 13 of the Regulations.
24. Within seven (7) days of receipt of a sealed copy of the Orders, the Wife shall arrange for a copy to be served upon the trustee of the Fund.
25. After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth), the Husband shall do all such things and sign all such documents as may be necessary to fulfil any request from the Wife for the transfer or rollover of her interests in the Fund.
26. The trustee of the Fund and either party have liberty to apply as to the implementation or enforcement of Orders 20 to 25 inclusive of these Orders upon the giving of seven (7) days’ written notice to the parties.
27. Unless otherwise specified in these Orders and except for the purposes of enforcing payment of any money due under these or any subsequent orders:
(a) each party retain to the exclusion of the other all property in the possession of or registered in the name of that party as at the date of these Orders including but not limited to any jewellery, furniture, furnishings, shares and motor vehicles;
(b) monies standing to the credit of the parties in any joint bank accounts are to be divided equally between the parties and the parties do all acts and sign all documents necessary to close any such accounts;
(c) each party is solely liable for and indemnifies the other against any credit card debts, personal loans and debts of whatsoever nature and kind in that party’s name;
(d) insurance policies remain the sole property of the named owner;
(e) each party is solely liable for, and indemnifies the other against, any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f) any joint tenancy of the parties in any real or personal property is hereby expressly severed.
28. Each party do all acts and things and sign all documents necessary to give effect to these Orders within fourteen (14) days of being requested to do so.
29. Each party has liberty to apply as to the enforcement or implementation of these Orders.
30. Pursuant to s.117 of the Family Law Act 1975 (Cth), the Husband pay the costs of the Wife reserved on 7 May 2021 fixed in the sum of $1,120.00 and the costs of this day according to the court scale fixed in the sum of $3,922.00, a total of $5,042.00.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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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