KIRKLAND & GORMAN

Case [2016] FCCA 104

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIRKLAND & GORMAN [2016] FCCA 104

Catchwords:
FAMILY LAW – Parenting – where parents cannot effectively communicate with each other – where lack of trust – where father is available to care for children – where recent history establishes father as the primary carer of the children – where further substantial changes to parenting arrangements not in children’s best interests.

FAMILY LAW – Property – where father’s contribution is substantially greater than that of the mother – where Court rejects father’s contention about meaning of High Court’s decision in Stanford – where Court rejects a mathematical approach to assessment of contribution – where minor s.75(2) adjustment in father’s favour.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79
Bevan & Bevan [2013] FamCAFC 116
Eufrosin & Eufrosin [2014] Fam CAFC 191
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Kennon & Kennon [1997] FamCA 27
MRR v GR [2010] HCA 4
Pierce v Pierce (1998) FLC 92-844
Singerson & Joan [2014] Fam CAFC 238
Stanford & Stanford [2012] HCA 52
Williams & Williams [2007] FamCA 313
Applicant: MS KIRKLAND
Respondent: MR GORMAN
File Number: BRC 7341 of 2013
Judgment of: Judge Altobelli
Hearing date: 30 November 2015 – 2 December 2015
Date of Last Submission: 2 December 2015
Delivered at: Brisbane
Delivered on: 17 March 2016

REPRESENTATION

The Applicant appeared in person
The Respondent appeared in person

ORDERS

Parenting

  1. The parents have equal shared parental responsibility for the Children, X born (omitted) 2003 and Y born (omitted) 2005 (“the children”).

  2. The party with whom the children are living with at that time is to be responsible for the day-to-day decisions concerning the care, welfare and development of the children.

  3. The children live with the Father.

  4. The children spend time with the Mother as follows:

    (a)Commencing from the first Thursday following the date of these Orders, in week 1, from Thursday after school to before school on Tuesday, and each alternate week thereafter; and

    (b)In week 2, on Thursday from after school until before school on Friday, and each alternate week thereafter;

    (c)If the children are not otherwise spending time with the Mother, on Mother’s Day from 9:00am until 6:00pm;

    (d)If the children are not otherwise spending time with the Mother, on their respective birthdays in even numbered years as follows:

    (i)If the child’s birthday falls on a school day, from after school until 8:00pm;

    (ii)If the child’s birthday falls on a non-school day, from 9:00am until 8:00pm;

    (e)Commencing from the first school holiday period following the date of these Orders, for the first half of each school holiday period in even numbered years, with such period to commence at 6:00pm on the last day of term and to conclude at 6:00pm on the date that is established by calculating the number of days starting from the first day after the end of the school term to the last day before the commencement of the next…

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AGLC
KIRKLAND & GORMAN [2016] FCCA 104
Case
[2016] FCCA 104
Decision Date

CaseChat Overview and Summary

This case concerned parenting and property disputes between a father and mother. The court was required to determine the parenting arrangements for the parties' two children, X and Y, and to divide their various assets and liabilities. The parenting dispute arose in circumstances where the parents had a lack of trust and an inability to communicate effectively, with the father having been the primary carer in recent times. The property dispute involved the division of bank accounts, real estate, vehicles, superannuation, and various debts.

The court was required to determine the best interests of the children in establishing parenting orders, considering the existing care arrangements and the parents' communication difficulties. In relation to property, the court had to assess the contributions of each party to the marriage and consider relevant adjustments under section 75(2) of the *Family Law Act 1975*. The court also had to consider the application of *Stanford* and its implications for assessing contributions, and how to deal with superannuation interests.

In its parenting orders, the court found that equal shared parental responsibility was appropriate, but that the children should live with the father, with specific time arrangements for the mother. The court noted that further substantial changes to parenting arrangements would not be in the children's best interests. In relation to property, the court rejected the father's contention regarding the meaning of *Stanford* and a purely mathematical approach to contributions, but found that the father's contributions were substantially greater. A minor adjustment under section 75(2) was made in the father's favour. The court then made detailed orders for the division of property, including the transfer of interests in various properties and bank accounts, and the allocation of specific assets and liabilities to each party, including a splittable payment from the mother's superannuation to the father.

Orders

Orders of the court

Parenting

1.

The parents have equal shared parental responsibility for the Children, X born (omitted) 2003 and Y born (omitted) 2005 (“the children”).

2.

The party with whom the children are living with at that time is to be responsible for the day-to-day decisions concerning the care, welfare and development of the children.

3.

The children live with the Father.

4.

The children spend time with the Mother as follows:

(a) Commencing from the first Thursday following the date of these Orders, in week 1, from Thursday after school to before school on Tuesday, and each alternate week thereafter; and

(b) In week 2, on Thursday from after school until before school on Friday, and each alternate week thereafter;

(c) If the children are not otherwise spending time with the Mother, on Mother’s Day from 9:00am until 6:00pm;

(d) If the children are not otherwise spending time with the Mother, on their respective birthdays in even numbered years as follows:

(i) If the child’s birthday falls on a school day, from after school until 8:00pm;

(ii) If the child’s birthday falls on a non-school day, from 9:00am until 8:00pm;

(e) Commencing from the first school holiday period following the date of these Orders, for the first half of each school holiday period in even numbered years, with such period to commence at 6:00pm on the last day of term and to conclude at 6:00pm on the date that is established by calculating the number of days starting from the first day after the end of the school term to the last day before the commencement of the next school term, multiplied by 0.5 (and rounded up by one day if the resulting number is above 0.5);

(f) For the second half of each school holiday period in odd numbered years, with such period to commence at 6:00pm on the date that is established by calculating the number of days starting from the first day after the end of the school term to the last day before the commencement of the next school term, multiplied by 0.5 (and rounded up by one day if the resulting number is above 0.5), and to conclude at 6:00pm on the last day before the commencement of the next school term;

(g) Orders 4(a) and 4(b) above be suspended during such times as specified in Orders 4(e) and 4(f).

5.

If the children are not otherwise spending time with the Father, on Father’s Day from 9:00am until 6:00pm.

6.

The children communicate with the Mother at any reasonable time when they are living with the Father, by any available means of communication.

7.

The children communicate with the Father at any reasonable time when they are spending time with the Mother, by any available means of communication.

8.

For the purpose of changeover, except where changeover is to take place at a child’s school, the Mother is to collect the children from the Father’s residence at the commencement of her time and return the children to the Father’s residence at the conclusion of her time.

Property

9.

Within 30 days, the Mother do all acts and things and sign all necessary documents to transfer her right interest and title in the (omitted) Bank joint account ((omitted)) to the Father.

10.

Within 60 days, the Father shall do all acts and things and sign all necessary documents so as to discharge the mortgage in respect of Property I (being the whole of the land contained in certificate of title reference (omitted)), and refinance the mortgage into his sole name, and the Father shall otherwise indemnify and keep the Mother indemnified against any and all other liabilities relating to that property including but not limited to the payment of rates, taxes, mortgage repayments and insurances.

11.

Within 60 days and subject to the Father refinancing the mortgage in his sole name, the Mother shall do all acts and things to transfer to the Father her entire right title and interest in the property at Property I (being the whole of the land contained in certificate of title reference (omitted)).

12.

Within 60 days, the Father shall do all acts and things and sign all necessary documents so as to discharge the mortgage in respect of Property P (being the whole of the land contained certificate of title reference (omitted)) and refinance the mortgage into his sole name, and the Father shall otherwise indemnify and keep the Mother indemnified against any and all other liabilities relating to that property including but not limited to the payment of rates, taxes, mortgage repayments and insurances.

13.

Within 60 days and subject to the Father refinancing the mortgage in his sole name, the Mother shall do all acts and things to transfer to the Father her entire right title and interest in the property at Property P (being the whole of the land contained certificate of title reference (omitted)).

14.

The Father shall be the sole owner and solely responsible for:

(a) the Honda (omitted) motor vehicle;

(b) any amount contained in the Father's (omitted) Super superannuation fund;

(c) the coin collection;

(d) fthe art collection;

(e) any funds contained in the Father's (omitted) Bank Accounts (a/c (omitted) and a/c (omitted));

(f) the mortgage against the property at Property I;

(g) Property P; and

(h) the debt owing to (omitted) Orthodontics.

15.

The Mother shall be the sole owner and solely responsible for:

(a) any funds contained in the Mother's (omitted) Bank Account (a/c (omitted));

(b) any funds contained in the Mother's (omitted) Bank Accounts (a/c (omitted) and a/c (omitted));

(c) the (omitted) bond;

(d) the (omitted) Kia Rio motor vehicle;

(e) any debt owing against the MasterCard credit; and

(f) the Mother’s superannuation (but for the provisions of order (8) below).

16.

The base amount allocated to Mr Gorman, the non-member spouse in these proceedings, out of the interest held by Ms Kirkland in (omitted) Super is $49,371.

17.

Pursuant to s.90MT(1)(a) of the Family Law Act 1975, whenever the Trustee of (omitted) Super makes a splittable payment from the interest held by Ms Kirkland member number: (omitted), the Trustee shall pay to Mr Gorman or his administrators, executors beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement Ms Kirkland would have had in (omitted) Super but for these Orders.

18.

Order (14) have effect from the operative time and the operative time shall be deemed to be 2 weeks from the date when these Orders are served upon the Trustee.

19.

This Order binds the Trustee of (omitted) Super.

20.

Except as otherwise set out in these Orders, the parties have the sole right, title and interest in any other property which is at the date hereof in their possession or control and they shall be solely liable for and indemnify the other against any and all personal liabilities.

21.

In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s.106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

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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