FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lamar & Lamar [2024] FedCFamC2F 339
File number(s): MLC 6031 of 2022 Judgment of: JUDGE GLASS Date of judgment: 19 March 2024 Catchwords: FAMILY LAW – PARENTING – allocation of parental responsibility – whether four year old child should live week about with her parents.
FAMILY LAW – PROPERTY – whether funds repaid to wife’s father should be added-back – whether post-separation loan ought be included as a joint liability – assessment of contributions and other factors.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 75, 79, 81, 90XT, 117
Family law (Superannuation) Regulations 2001 (Cth) pt 6
Cases cited: AJO & GRO (2005) FLC 93-218
ASIC v Hellicar (2012) 247 CLR 345
Blass & Blass (2022) FLC 94-085
Boyle & Zahur & Another (2017) FLC 93-814
Dulton & Dulton (2020) FLC 93-984
Eastley & Eastley (2022) FLC 94-094
Elliston & Dennell (2019) FLC 93-903
Eufrosin & Eufrosin [2014] FamCAFC 191
Fox v Percy (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
Jong & Yeng [2014] FamCAFC 156
Lainhart & Ellinson (2023) FLC 94-166
Lennon & Lennon [2011] FamCA 571
Maclean & Greenwood (2022) FLC 94-117
Makita & Sprowles (2001) 52 NSWLR 705
Manifold & Alderton (2021) FLC 94-015
Marcin & Marcin (2020) FLC 93-956
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Muldoon & Carlyle (2012) FLC 93-513
NHC & RCH (2004) FLC 93-204
Oberlin & Infeld (2021) FLC 94-017
Palumbo & Mandel (2019) FLC 93-929
Pearson & Pearson (2021) FLC 94-008
Prince & Prince (1984) FLC 91-501
Rodgers & Rodgers (2016) FLC 93-703
Russo & Wylie (2016) FLC 93-747
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858
Vigano & Desmond (2012) FLC 93-509
Division: Division 2 Family Law Number of paragraphs: 196 Date of hearing: 4-7 March 2024 Place: Melbourne Counsel for the Applicant: Ms Tiernan Solicitor for the Applicant: Bentleys Barristers and Solicitors Counsel for the Respondent: Ms Mooney SC Solicitor for the Respondent: Pentana Stanton Lawyers ORDERS
MLC 6031 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LAMAR
Applicant
AND: MS LAMAR
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
PARENTING
1.The Mother have sole parental responsibility for X, born in 2019.
2.X live with the Mother.
3.X spend time and communicate with the Father as follows:
(a)Until such time as X commences primary school:
(i)during the school term, on alternate weekends commencing 29 March 2024 from 4:00pm Friday until 4:00pm Monday; and
(ii)during the school term holiday period as agreed, and failing agreement:
A.during the first week from 4:00pm Friday until 4:00pm Monday; and
B.during the second week from 4:00pm Tuesday until 4:00pm Friday.
(iii)during the long summer school holidays for three nights per week as agreed, and failing agreement as follows:
A.during the first, third and fifth…
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- Lamar & Lamar [2024] FedCFamC2F 339
- Case
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CaseChat Overview and Summary
The court had to determine the best living arrangements for the child, including the allocation of parental responsibility and the specific visitation schedule. Additionally, the court needed to resolve the financial aspects of the case, including the repayment of funds to Ms Lamar's father, the inclusion of a post-separation loan as a joint liability, and the assessment of contributions to the marriage. The court also had to decide whether certain property transactions should be considered in the division of assets.
The court concluded that Ms Lamar should have sole parental responsibility for X, with the child living primarily with her. The visitation schedule for the father was detailed, with specific times allocated during weekends, school holidays, and special occasions. The court also addressed the financial aspects, ordering Mr Lamar to pay a specific sum to Ms Lamar and detailing the division and refinancing of their respective properties. Furthermore, the court directed that a portion of Mr Lamar's superannuation be allocated to Ms Lamar in accordance with the Family Law Act 1975.
The final orders specified the parenting arrangements, the financial settlements, and the division of property. Mr Lamar was ordered to pay Ms Lamar $47,482 within 90 days, and detailed steps were provided for the sale and division of their properties if certain conditions were not met. Additionally, a portion of Mr Lamar’s superannuation was allocated to Ms Lamar.
Orders
Orders of the court
MLC 6031 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR LAMAR
Applicant
AND:
MS LAMAR
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
PARENTING
1. The Mother have sole parental responsibility for X, born in 2019.
2. X live with the Mother.
3. X spend time and communicate with the Father as follows:
(a) Until such time as X commences primary school:
(i) during the school term, on alternate weekends commencing 29 March 2024 from 4:00pm Friday until 4:00pm Monday; and
(ii) during the school term holiday period as agreed, and failing agreement:
A. during the first week from 4:00pm Friday until 4:00pm Monday; and
B. during the second week from 4:00pm Tuesday until 4:00pm Friday.
(iii) during the long summer school holidays for three nights per week as agreed, and failing agreement as follows:
A. during the first, third and fifth week, from 4:00pm Friday until 4:00pm Monday; and
B. during the second, fourth and sixth week, from 4:00pm Tuesday until 4:00pm Friday.
(b) Upon X commencing primary school:
(i) during the school term, on alternate weekends from the conclusion of school on Friday (or 4:00pm if a non-school day), until the commencement of school on Tuesday (or 10:00am on a non-school day);
(ii) for one half of each term school holiday period as agreed, and failing agreement, the first week with the Father in odd years and the second week in even years, with changeover to occur at 12:00pm on the middle Saturday;
(iii) for one half of the long summer school holidays on a week about basis as agreed between the parties, and failing agreement, the child shall spend time with the Father during the first, third and fifth week of the long summer school holidays commencing in odd years, and during the second, fourth and sixth week of the long summer school holidays commencing in even years, with changeover to occur each Saturday at 12:00pm; and
(c) As otherwise agreed between the parties in writing.
4. Despite any Order to the contrary, X spend time with her parents on special occasions as agreed and failing agreement as follows:
(a) on Mother’s Day with the Mother from 10:00am until 5:00pm;
(b) on Father’s Day with the Father from 10:00am until 5:00pm;
(c) for Christmas, with the Mother from 12.00pm Christmas Eve until 12.00pm Christmas Day, and with the Father from 12:00pm Christmas Day until 12:00pm 26 December; and
(d) for Easter:
(i) in even years, with the Father from 4:00pm Maundy Thursday until 1:00pm Easter Saturday, and with the Mother from 1:00pm Easter Saturday until 4:00pm Easter Monday; and
(ii) in odd years with the Mother from 4:00pm Maundy Thursday until 1:00pm Easter Saturday, and with the Father from 1:00 pm Easter Saturday until 4:00pm Easter Monday.
5. In order to facilitate the preceding paragraphs, changeover occur as agreed between the parties in writing and failing agreement:
(a) at kindergarten or school at kindergarten or school times; and
(b) otherwise, at the Father’s residence at the commencement of X’s time with her Father, and the Mother’s residence at the conclusion of time.
6. In relation to telephone calls:
(a) when X is with the Mother, the Father be at liberty to call X between 5:30pm and 6:00pm each Wednesday;
(b) when X is with the Father, the Mother be at liberty to call X between 5:30pm and 6:00pm on Saturday;
(c) the parent with whom X is residing shall facilitate telephone calls pursuant to this Order; and
(d) the parties be restrained from recording the telephone conversations with the child.
7. The parties communicate about X via the AppClose parenting application.
8. The parties be restrained by injunction from enrolling X in, or taking X to, a childcare centre or kindergarten other than AI School.
9. The Mother do all things necessary to enrol X in B School, Suburb C.
10. Both parents be authorised to receive directly from X’s school, copies of all school notices, information, newsletters and school reports, details of parent/teacher interviews and be at liberty to arrange same by telephone, copies of school photographs and order forms and any information which is relevant to X’s education, at the requesting parent’s expense.
11. Both parents be at liberty to attend X’s school and extra-curricular activities that parents would ordinarily attend, including but not limited to parent teacher interviews, concerts and competitions.
12. The parties keep each other informed of any significant injury or illness suffered by X when in their respective care, as soon as practicable, including advising the other of:
(a) the nature of the significant injury or illness;
(b) the names of all relevant treating medical and allied health practitioners; and
(c) the treatment given to date and relevant information about the diagnosis.
13. Each parent be authorised (and these Orders shall act as authority for same) to contact X’s treating practitioner/s and/or allied health care professionals to discuss X including as to any diagnosis, treatment, and future prognosis, and to seek further information and advice.
14. The parties do all acts and things necessary and sign any required documents to enrol X at the:
(a) D Sports Centre and the parties shall ensure that X is taken to all lessons and/or associated events while she is in their respective care; and
(b) E Sports Centre and the parties shall ensure that X is taken to weekly lessons and/or associated events while she is in their respective care.
15. The parties do all acts and things necessary and sign any required documents to be provided to Births Deaths and Marriages, Victoria to change the X’s name from X to X.
16. Each parent shall keep each other informed of their current address, email and telephone number, and inform the other parent of any change within 48 hours of said change.
17. Upon X reaching seven (7) years of age and in the event that either parent wishes to travel overseas with X:
(a) the travelling parent shall give the other parent sixty (60) days prior notice in writing of the proposed travel including full particulars of the following:
(i) a full travel itinerary, including all travel dates;
(ii) copies of e-tickets including return details;
(iii) address(es) at which X shall be staying and contact number(s);
(iv) a proposal for make-up time; and
(b) the Mother retain X’s passport for safekeeping purposes and provide same to the Father upon request by him no later than 14 days prior to travel;
(c) The Father shall return the passports to the Mother within 7 days of return to Melbourne;
(d) Neither parent shall travel with X to any country which is:
(i) not a signatory to the Hague Convention; or
(ii) that the Australian Government has issued a travel advice higher than "Exercise a High Degree of Caution"; and
(e) At least 10 days prior to the travel. the travelling parent provide the non‑travelling parent with the following:
(i) evidence that the travelling parent has enquired with X’s treating General Practitioner about any vaccinations recommended to persons travelling to the country or countries to which she will travel;
(ii) evidence that X received the recommended vaccinations at the cost of the parent organising the overseas trip;
(iii) the travelling parent keep the other parent informed in writing of all changes to the travel itinerary, accommodation details, and X’s contact details for the duration of the proposed travel as soon as practicable.
18. Both parents do all such acts and things necessary to apply for, and renew as required, X’s passport and the travelling parent pay for all costs associated with all applications and renewals.
19. Each parent be restrained from denigrating, abusing, insulting or belittling the other parent or his/her extended family to or in the presence and/or hearing of X, or permitting any other person doing so.
20. Each party have liberty to provide a copy of Dr G’s psychiatric assessments to their treating mental health practitioners.
PROPERTY
21. Within 90 days, the Applicant pay to the Respondent the sum of $47,482.
22. Contemporaneously with the payment, both parties do and sign all acts and things to:
(a) transfer the property situated at F Street, Suburb H in the State of Victoria more particularly described as Volume … and Folio … ("Suburb H Property") to the Respondent at her expense;
(b) discharge the mortgage in favour of the J Bank (mortgage number …) secured over the Suburb H Property and the Respondent shall refinance the loan in her sole name;
(c) transfer the property situated at K Street, Suburb L in the State of Queensland, being the land more particularly described with title reference … (“Suburb L Property”) to the Applicant at his sole expense; and
(d) discharge the mortgage in favour of the J Bank secured over the Suburb L Property and the Applicant shall refinance the loan in his sole name.
23. In the event the Applicant is unable to make the payment or refinance the Suburb L Property by the due date, the parties do all things necessary to place the Suburb L Property on the market for sale with the following conditions:
(a) the selling agent be as agreed, and failing agreement M Company shall have care and conduct of the sale;
(b) the conveyancer for the sale be as agreed between the parties and if there is no agreement N Company shall conduct the conveyance on behalf of the parties;
(c) the terms and conditions of the sale including but not limited to the sale price be as agreed between the parties but if there is no agreement, the sale price shall be pursuant to the sworn valuation of $520,000 or as nominated by the real estate agent from time to time; and
(d) the parties shall accept the higher of any offer within $15,000 from the sale price.
24. Contemporaneously with the listing of the Suburb L Property for sale pursuant to the preceding paragraph, the parties shall forthwith provide notice to the existing tenants to vacate the property contemporaneously with the sale.
25. Upon the sale of the Suburb L Property, the proceeds of the sale be forthwith disbursed as follows:
(a) firstly, payment of all agent's commission, advertising expenses and legal expenses of the sale;
(b) secondly, to discharge the mortgage and any other encumbrance affecting the real property;
(c) thirdly, the sum of $47,482 to the Respondent together with interest calculated from the due date for the payment; and
(d) finally, the balance then remaining to the Applicant.
26. In the event the Respondent is unable to re-finance the Suburb H Property by the due date, the parties shall forthwith do all such things and sign all such documents as necessary to list the Suburb H Property for sale on the following conditions:
(a) the selling agent be as agreed, and failing agreement, O Company, Suburb H shall have care and conduct of the sale;
(b) the conveyancer for the sale be as agreed between the parties, and if there is no agreement, then a joint conveyance shall be conducted by the parties' existing solicitors;
(c) the terms and conditions of the sale, including but not limited to the sale price be as agreed between the parties but if there is no agreement, the sale price shall be pursuant to the sworn valuation of $967,500 or as nominated by the real estate agent from time to time; and
(d) the parties shall accept the higher of any offer within $15,000 from the sale price.
27. That upon the sale of the Suburb H Property, the proceeds of the sale be forthwith disbursed as follows:
(a) firstly, payment of all agent's commission, advertising expenses and legal expenses of the sale;
(b) secondly, to discharge the mortgage and any other encumbrance affecting the real property; and
(c) finally, the balance to be paid to the Respondent.
28. In accordance with section 90XT of the Family Law Act 1975, the sum of $20,953 is allocated from the Applicant’s interest in the Super Fund 1 account number ….
29. In accordance with section 90XT(1)(a) of the Family Law Act 1975:
(a) the Respondent 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
(b) the entitlement of the Applicant in the Fund is correspondingly reduced by the force of this Order.
30. That the trustee of the Fund (trustee) is bound by this Order and shall do all acts and things and sign all such documents as may be necessary to:
(a) calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement of the Respondent in the immediately preceding clause of this Order; and
(b) pay the entitlement whenever the trustee makes a splittable payment from the Applicant's interest in the Fund.
31. This Order has effect from the operative time and the operative time is four (4) days after service of this Order on the Trustee.
32. After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“SIS Regulations”) the Applicant shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Respondent's request in accordance with the SIS Regulations, for the payment of the Respondent's interest by way of a lump sum entitlement in accordance with the SIS Regulations.
33. Unless otherwise specified in these Orders and save for the purpose 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 other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b) monies standing to the credit of the parties in any joint bank account to be divided equally between the parties and thereafter the parties shall do all acts and things required to close any joint bank account;
(c) each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
(d) insurance policies remain the sole property of the owner named therein;
(e) each party be solely liable for and indemnify the other against any credit card debt or other personal liabilities in their names;
(f) each party be solely liable for and indemnify the other against any liability encumbering any item of the property to which the party is entitled pursuant to these Orders; and
(g) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
34. All extant applications be dismissed.
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
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Evidence Before The Court
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Decision
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Legal Principle Established
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