FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McKinney & Freud [2024] FedCFamC1F 299
File number: HBC 1068 of 2022 Judgment of: MCGUIRE J Date of judgment: 8 May 2024 Catchwords: FAMILY LAW – CHILDREN – Parenting existing shared care arrangement – issue as to husband’s capacity to attend to the children’s needs – whether there is a risk to the children by reason of his stridently held social and pseudo political viewpoints – order for children to live primarily with the wife – order for sole parental responsibility in the wife
FAMILY LAW – PROPERTY – Issues as to the husband holding particular viewpoints such that he refuses to pay mortgage instalments – wife’s superior contributions during marriage and post separation – section 75(2) factors – order for alteration of tangible property pool as to 65 per cent to the wife and 35 per cent to the husband – orders for superannuation split from the husband’s entitlements so as to effect equality of superannuation entitlements
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 75(2) and 79
Cases cited: Isles & Nelissen (2022) FLC 94-092; [2022] FedFamC1A 97
Kowaliw v Kowaliw (1981) FLC 91-092
Mazorski & Albright (2007) 37 Fam LR 518, [2007] FamCA 520
McCall & Clark (2009) FLC 93-405, [2009] FamCAFC 92
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Re: F Litigants in Person Guidelines (2001) FLC 93-072
Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 249 Date of hearing: 29 and 30 April 2024 and 1 and 2 May 2024 Place: Hobart Counsel for the Applicant: Mrs Mooney Solicitor for the Applicant: Wallace Wilkinson & Webster Solicitor for the Respondent: Litigant in Person Counsel for the Independent Children’s Lawyer: Mr McKenna Solicitor for the Independent Children’s Lawyer: Ogilvie Jennings ORDERS
HBC 1068 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS McKINNEY
Applicant
AND: MR FREUD
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
8 MAY 2024
THE COURT ORDERS THAT:
PARENTING
1.Ms McKinney (“the wife”) have sole parental responsibility for the children X born 2009, Y born 2011 and, and Z born (2013) (collectively “the children”) provided that the wife prudently advise the husband of any medical or education issues in respect of the children or any of them and advise the husband within seven days of any important decisions made by her in respect of the children including but not limited to matters of medical and educational importance.
2.The children live with the wife.
3.The children spend time with the husband, Mr Freud (“the husband”) as follows:
(a)during school terms each alternate weekend from after school Thursday or 4:30pm if a non-school day until 4:30pm the following Tuesday commencing the second Thursday from the handing down of these Orders;
(b)for the first half of each mid-term school holiday being from the conclusion of school on Friday (or 4:30pm if not…
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CaseChat Overview and Summary
The legal issues before the court included whether the husband's capacity to care for the children was compromised by his strongly held social and pseudo-political views, and whether the court should grant sole parental responsibility to the wife. Additionally, the court had to consider the division of the tangible property pool and superannuation entitlements between the parties, taking into account the respective contributions and section 75(2) factors of the Family Law Act 1975.
In its reasoning, the court found that the husband's prioritization of his social, legal, and pseudo-political views, including his refusal to seek employment until his litigation with S Limited was finalised, constituted a risk to the children. The court also noted the impact of the husband's different parenting philosophies and styles on the children, including issues related to education, medical compliance, and hygiene. Consequently, the court concluded that the presumption of equal shared parental responsibility was rebutted as being contrary to the children’s best interests, and it ordered sole parental responsibility to the wife with specified arrangements for the children to spend time with the husband.
Regarding the property division, the court ordered the tangible assets and proceeds from the sale of the properties to be distributed in a 65 per cent to 35 per cent ratio in favour of the wife, reflecting her superior contributions during the marriage and post-separation. Furthermore, the court ordered a split of the husband's superannuation entitlements to effect equality.
The final orders include granting sole parental responsibility to the wife, with specific arrangements for the children's time with the husband. The court also ordered the sale of the properties and the distribution of the sale proceeds, along with the division of tangible assets and superannuation entitlements, as per the court's findings.
Orders
Orders of the court
HBC 1068 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS McKINNEY
Applicant
AND:
MR FREUD
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
8 MAY 2024
THE COURT ORDERS THAT:
PARENTING
1. Ms McKinney (“the wife”) have sole parental responsibility for the children X born 2009, Y born 2011 and, and Z born (2013) (collectively “the children”) provided that the wife prudently advise the husband of any medical or education issues in respect of the children or any of them and advise the husband within seven days of any important decisions made by her in respect of the children including but not limited to matters of medical and educational importance.
2. The children live with the wife.
3. The children spend time with the husband, Mr Freud (“the husband”) as follows:
(a) during school terms each alternate weekend from after school Thursday or 4:30pm if a non-school day until 4:30pm the following Tuesday commencing the second Thursday from the handing down of these Orders;
(b) for the first half of each mid-term school holiday being from the conclusion of school on Friday (or 4:30pm if not a school day) until 12 noon on the second Saturday of such holidays;
(c) for one half of each Tasmanian gazetted summer school holidays being on a week about basis with the children to spend the first week of such holidays with the husband in 2024 and in each alternate year thereafter and the first week of such holidays with the wife in 2025 and in each alternate year thereafter with changeovers to occur on Friday’s at 5.00pm;
(d) provided that time for the children with the husband each alternate weekend be suspended during any periods of school holidays; and
(e) such further time or variations of the above as may be agreed between the parents from time to time;
4. The time for the children with the husband pursuant to order 3 hereof is conditional upon the parents agreeing that the husband has “appropriate accommodation” for the children with the wife not to unreasonably withhold her agreement but where such accommodation should have the following traits:
(a) be within one hour drive of the children’s school at Town B;
(b) have a plumbed-in and a working bathroom inside the premises;
(c) have a bedroom specifically for Y’s sole use;
(d) have a bedroom specifically for the joint use of X and Z; and
(e) have a Certificate of Occupancy if an owner occupied dwelling.
5. In order to establish “appropriate accommodation” the husband shall provide to the wife evidence of the any lease or contract for the purchase of property together with, if relevant, a copy of any certificate of occupancy and photographs of the exterior and interior of the home and specifically as to the bedroom provisions for the children.
6. In the event that the parties do not have agreement as to the husband having appropriate accommodation and during such periods the children shall spend time with the husband as follows:
(a) each alternate weekend from 9.00am until 5.00pm on each of the Saturday and Sunday; and
(b) otherwise agreed between the parents.
7. The parents or either of them have liberty to apply in respect of the issue of “appropriate accommodation” proposed by the husband.
8. In any event the children spend time with the parents as follows but also subject to the husband having appropriate accommodation in the terms set out above:
(a) in even numbered years with the husband from 4:30pm on 24 December until 4:30pm on Christmas Day and with the wife from 4:30pm on Christmas Day until 4:30pm on Boxing Day; and
(b) in odd numbered years with the husband from 4:30pm Christmas Day until 4:30pm Boxing Day and with the wife from 4:30pm on 24 December until 4:30pm on Christmas Day.
9. For the purposes of these Orders changeovers occur at school on school days and at other times the wife shall deliver the children to the husband at the commencement of such time and at a park at Town B and the husband shall return the children to the wife at the conclusion of such times at an oval at Town C.
10. The husband be entitled to communicate with the children via electronic means each Wednesday with such call to be initiated by the husband between the hours of 4.00pm and 5.00pm and the wife to ensure that the children are available to take the call.
11. The wife be entitled to communicate with the children via electronic means during school terms on each alternative Sunday should the children be in the husband’s care and each Wednesday during school holidays when the children are in the husband’s care such calls to be initiated by the wife between the hours of 4.00pm and 5.00pm with the husband to ensure that the children are available to take the call.
12. The parents prudently keep each other informed of the that parent’s email, residential address, and telephone numbers.
13. The parents shall use Our Family Wizard to communicate regarding parenting matters being the sole means of communication save and except in the event of emergencies with the husband to set up and maintain the account.
14. The parents will each promptly advise the other of any attendance upon any medical professional for the children and any details of any medication or course of treatment prescribed and each parent then have a positive obligation to ensure that the relevant child is administered such medication or treatment.
15. Each of the parents be and are hereby restrained from denigrating the other parent or that parent’s partner to or in the presence of or hearing of the children or any of them and to take all reasonable steps to restrain any third person denigrating the other parent or the other parent’s partner in the presence or hearing of the children or any of them.
16. The husband and any person on his behalf be and is hereby restrained from posting any material on social media or otherwise for public dissemination which references or identifies these proceedings or the parties or children the subject of these proceedings.
17. The husband be and is hereby restrained from using any illicit substances whilst the children or any of or any of them are in his care and for 24 hours prior to the children or any of them coming into his care and from knowingly permitting the children to be exposed to any illicit substance use or drug paraphernalia.
18. The husband be restrained from transporting the children in any vehicle in which he is the driver unless he is fully licensed and such vehicle is registered and insured and from permitting any other person to transport the children in any vehicle in which that driver is known to the husband as being unlicensed and/or the vehicle unregistered or uninsured.
19. The husband facilitate the children’s attendance at the children’s relevant extracurricular activities that are scheduled during any time that the children are in his care.
20. These Orders, whilst noting the Order in favour of the wife as to sole parental responsibility, do authorise any schoolteacher or medical, mental health or allied health professional to speak with either of the parents in respect of issues for the children or any of them usually conveyed by such professionals to parents.
21. The appointment of the Independent Children’s Lawyer continue for six (6) months from the date of these Orders.
PROPERTY
22. Forthwith the Parties appoint D Real Estate in Tasmania, (“the Agent”) or such other real estate agent as nominated by the wife, as the sole agent to act on behalf of the parties unless otherwise agreed between the parties in writing for the sale of:
(a) E Street, Town F in Tasmania more particularly described in the Register of Titles Volume … Folio 1 (“the Town F Property”); and
(b) G Street, Town C in Tasmania, being more particularly described in the Register of Titles Certificate of Titles Volume … Folio … and Volume … Folio … (hereinafter collectively referred to as “the Town C Property”).
23. Forthwith the parties do all things and sign all documents necessary to market and sell the Town F Property and Town C Property in accordance with the Terms of Sale in Schedule 1 to this Order.
24. The parties jointly appoint Wallace Wilkinson & Webster Lawyers in City W to have principal carriage of the sale of the Town F Property and Town C Property, including but not limited to the conveyancing, with the legal conveyancing fees and disbursements to be paid from the sale proceeds.
25. Upon completion of the sale of the Town F Property pursuant to these Orders, the sale proceeds will be paid and distributed in the following manner and priority:
(a) first, to discharge any monies payable by way of caveat against the Town F Property;
(b) second, the mortgage in favour of National Australia Bank Limited presently secured over the Title of the Property, mortgage number …;
(c) third, to pay the Agents’ costs of the sale, including commission, and advertising expenses;
(d) fourth, to pay the legal conveyancing costs and disbursements in relation to the sale;
(e) fifth, to pay the usual conveyancing adjustments in respect of municipal council rates, land tax, water and sewerage charges payable including arrears of the same;
(f) sixth, in payment to either party for any repair/improvement costs paid to undertake necessary repairs/improvements as recommended by the Agent at the Property;
(g) seventh, such sum as is required to pay a Government service to remove the Enforcement Warrant, dealing number …, presently registered on the Town F Title AND such sum is to be deducted from any monies payable to the husband by way of final order; and
(h) eighth, the balance sale proceeds to be held by Wallace Wilkinson & Webster Lawyers in their trust account pending distribution pursuant to the these Orders such trust accounts to be in the names of the wife and the husband.
26. Upon completion of the sale of the Town C Property pursuant to these Orders, the sale proceeds will be paid and distributed in the following manner and priority:
(a) first, to discharge any monies payable by way of caveat against the Town C Property;
(b) second, to discharge the mortgage in favour of National Australia Bank Limited presently secured over the Title of the Property, mortgage number …;
(c) third, to pay the Agents’ costs of the sale, including commission, and advertising expenses;
(d) fourth, to pay the legal conveyancing costs and disbursements in relation to the sale;
(e) fifth, to pay the usual conveyancing adjustments in respect of municipal council rates, land tax, water and sewerage charges payable including arrears of the same;
(f) sixth, in payment to either party for any repair/improvement costs paid to undertake necessary repairs/improvements as recommended by the Agent at the Property upon the relevant party providing a copy of the tax invoice/s and receipt/s and in accordance with 1.4 and 1.5 of Schedule 1 annexed hereto; and
(g) seventh, the balance sale proceeds to be held by Wallace Wilkinson & Webster Lawyers in their trust account pending distribution pursuant to the these Orders such trust accounts to be in the names of the wife and the husband.
27. From the date of these Orders and pending the sale of the Town C property, the wife shall be solely responsible for all presently outstanding and future demands for outgoings and utility expenses, including arrears, relating to the Town C Property, including but not limited to mortgage loan payments, council rates, land taxes, water and sewerage charges, statutory charges, insurance premiums, and she will indemnify the husband and keep him indemnified against any action, claim or demand in relation thereto.
28. From the date of these Orders and pending the sale of the Town F property, the husband shall be solely responsible for all presently outstanding and future demands for outgoings and utility expenses, including arrears, relating to the Town F Property, including but not limited to mortgage loan payments, council rates, land taxes, water and sewerage charges, statutory charges, insurance premiums, and he will indemnify the wife and keep her indemnified against any action, claim or demand in relation thereto.
29. Forthwith the Parties appoint such Real Estate Agent in Queensland as nominated by the Wife, (“the Agent”) as the sole agent to act on behalf of the Parties for the sale of H Street, City J in Queensland, (“the City J Property”) unless otherwise agreed between the Parties in writing.
30. Forthwith the husband do all things and sign all documents necessary to market and sell the City J Property in accordance with the Terms of Sale in Schedule 1 to this Order.
31. The wife to have principal carriage of the sale of the City J Property, including but not limited to the conveyancing, with the legal fees to be paid from the sale proceeds.
32. Until the sale and transfer of the City J Property to a third party the husband shall be solely responsible for the payment of all expenses and outgoings (including arrears owing at the date of these Orders) relating to the City J Property, including but not limited to mortgage loan repayments, municipal council rates, water and sewerage charges and land tax, and shall make payment of the outgoings as and when such outgoings become due and payable and the husband shall indemnify the wife and keep her indemnified in relation to the same.
33. Pending the completion of the sale of the City J Property, both parties do all such acts and sign all such documents necessary to ensure that the rental income from the City J Property be applied to pay the mortgage, council rates and land tax relating to the City J Property.
34. Upon completion of the sale of the City J Property pursuant to these Orders, the sale proceeds will be paid and distributed in the following manner and priority:
(a) first, to discharge the mortgage presently secured over the Title of the Property;
(b) second, to pay the Agents’ costs of the sale, including commission, and advertising expenses;
(c) third, to pay the legal conveyancing costs and disbursements in relation to the sale;
(d) fourth, to pay the usual conveyancing adjustments in respect of municipal council rates, land tax, water and sewerage charges payable including arrears of the same;
(e) fifth, in payment to either party for any repair/improvement costs paid to undertake necessary repairs/improvements as recommended by the Agent at the Property upon the relevant party providing a copy of the tax invoice/s and receipt/s and in accordance with 1.4 and 1.5 of Schedule 1 annexed hereto; and
(f) sixth, the balance sale proceeds to be held by Wallace Wilkinson & Webster Lawyers in their trust account pending distribution pursuant to the these Orders such trust accounts to be in the names of the wife and the husband.
35. Pending its sale the husband keep the Town F property in a fit, neat and tidy state and that he allow the wife, the real estate agent, and any interested purchasers reasonable and prudent right of entrance for inspection of the property and that the wife have liberty to apply, if necessary on short notice, in respect of this Order.
36. The husband shall vacate the Town F property not less than seven (7) days prior to the advised day of settlement of the sale of that property leaving the property in a fit, neat, and tidy state.
37. In the event of any wilful damage being sustained to the Town F property as at the vacation date ( not including reasonable wear and tear), the costs of an incidental of the repair of such damage shall be the sole responsibility of the husband with the repair costs to be deducted from the from the husband’s share of the share of the net sale proceeds in accordance with paragraph 39 herein.
38. Not less than seven (7) days prior to settlement for the sale of the Town F Property, the husband shall provide the wife’s solicitors with all the keys to the property and all access codes ( if applicable) and security information necessary to facilitate the wife’s entry to the property and failing provision of same, the wife or her agent are permitted to undertake any action reasonably necessary to gain entry to the Town F property and the costs of and incidental to gaining entry to the Town F property shall be paid by the husband and deducted from any amount payable to the husband by way of final order.
39. Upon the husband vacating the property the wife and/or her agent shall have sole use and occupation of the Town F property.
40. The property of the parties in the form of the tangible assets and as to net value then be distributed as to 65 per cent to the wife and 35 per cent to the husband and the proceeds of the sales of real property be distributed so as to give effect to an overall 65 per cent to the wife and 35 per cent to the husband settlement and in accordance with the balance sheet set out in the Reasons for Judgment herein at [209] –[217].
41. Each of the parties be otherwise entitled to the exclusion of the other to all personalty and chattels in that party’s possession or control, bank account balances as at the date of these Orders in the name of or to the benefit of that party, insurance policies and superannuation entitlements (but subject to these Orders), and motor vehicles in the possession or control of that party at the date of these Orders.
42. Each of the parties be solely responsible for and indemnify the other in respect of the following liabilities:
(a) any outstanding liabilities incurred by that party in either that party’s name alone or in joint names; and
(b) any further liability attaching to any asset retained by that party pursuant to these Orders.
43. In accordance with section 90XT(1)(a) of the Family Law Act 1975 (“the Act”) a base amount of $96,722 shall be allocated to the wife from the interest of the husband Mr Freud in his Super Fund 1, member number … (“Super Fund 1”).
44. Pursuant to section 90XT(1)(a) of the Act, whenever Super Fund 1 as the Trustee of Super Fund 1 makes a splittable payment in respect of the husband’s interest in Super Fund 1, the Trustee will:
(a) Pay to the wife or her legal personal representatives, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b) make a corresponding reduction in the entitlement that the person to whom the splittable payment would have been made but for this Order.
45. The operative time for paragraphs 43 and 44 above is four (4) business days after service of a certified copy of these Orders on the Trustee of Super Fund 1.
46. The Trustee do all such acts and things and sign all necessary documents to fulfil any obligation set out in the Act and the Family Law (Superannuation) Regulations 2001 so that the Applicant Wife’s entitlement can be calculated and paid to them in accordance with these Orders.
47. In the event that either party refuses or neglects to execute a Deed and/or Instrument in compliance with the provision of these Orders, the Registrar of the Federal Circuit and Family Court of Australia at one of two designated registries are hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all Deeds and/or Instruments in the name of the defaulting party and do all acts and/or things necessary to give validity and operation to the Deed and/or Instruments.
48. The Parties must do all such acts and things, execute and sign all such documents and provide all consents as is necessary to execute to give effect to the terms of these Orders.
49. On the failure or refusal of the husband to execute all relevant documents then the Registrar of the Federal Circuit and Family Court of Australia at City W Registry is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all Deeds and/or Instruments in the name of the husband and do all acts and/or things necessary to give validity and operation to the Deed and/or Instruments.
50. The wife’s solicitors on the record have leave to provide a copy of these Orders to any lawyers acting for National Australia Bank in proceedings against the husband and/or the wife for the recovery of the property being security for mortgage loans provided by National Australia Bank to the parties or either of them.
51. There be leave to the parties or either of them to apply in respect of the execution of any of the Orders above.
52. Pursuant to s 81 of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The implication of the husband’s argument is that he should be permitted to pursue his defence of the S Limited litigation prior to this Court acting on the wife’s application for the sale of the three pieces of real property mortgaged to S Limited. The task of the Court, however, is to deal with the circumstances of the parties as they stand in respect of the current and ongoing best interests of the children. FINDINGS AND CONSIDERATION - PARENTING The evidence allows me to easily find that all three children have established and loving relationships with each of their parents. Whilst they are familiar with the regime of the week‑about between their parent’s homes and transition easily, there are indications that the children are aware of and impacted by the various strongly held principles of their father. Notable is Z’s comments to Ms V as to the jeopardy of their accommodation. I am satisfied that the children are aware of the historical and ongoing conflict between their parents. The evidence makes it clear that the parents hold different parenting philosophies, present as different role models, and offer different styles of parenting and residence for the children. The parents are non-communicative in respect of parenting issues and their differing parenting philosophies have impacted on the children such as the husband’s previous lack of commitment to their education as noted in the school principal’s affidavit. The parents hold very different views as to medical issues for the children most obviously in the husband’s refusal to adhere to Government mandates for COVID and again noted in the affidavit of the school principal. The parents hold different views as to day-two-day hygiene of the children. I am satisfied that the husband has not at all times adhered to normal hygiene standards for the children where he holds strong views as to the use of common toothpastes, soaps, and washing powders. There has been an impact on the children noted by Y’s complaint to the wife that she has been ridiculed at her school over hygiene issues. I am satisfied on the evidence that the husband currently prioritises (by his own admission) his social, legal and pseudo-political views where he himself says that he will not seek employment until his litigation with S Limited is finalised. For all of the above reasons, I am of the view that the presumption of equal shared parental responsibility at s 61DA of the Act is rebutted as being contrary to the children’s best interests. Whilst the parents have admirably worked a week-about arrangement for some years, their different parenting styles and philosophies have impacted directly on the children’s lives and in particular in their education. I also detect from the evidence a degree of coercive/control in the personality of the husband evidenced by his strident focus on his various matters of principle and including the S Limited litigation. In all the circumstances, therefore, I am of the view that an order for sole parental responsibility for the three children resting in the wife is in the best interests of those children. I will order accordingly. There will be an order that the wife give notice to the husband of any major decisions made by her in respect of the children’s education and medical issues within seven days of making those decisions.