FEDERAL CIRCUIT COURT OF AUSTRALIA
| McRAE & WILKIE | [2017] FCCA 2469 |
| Catchwords: FAMILY LAW – Property – where the immediately realisable assets of the parties are limited – where the husband has received significant amounts in to his own control from those limited assets – where a partial property settlement has been effected in favour of the wife – where the primary assets available for distribution constitute superannuation and disability support payments – where the husband is assessed as totally and permanently disabled and the wife has obtained qualifications as a (occupation omitted) – where a significant variation in the entitlements of each party arises as a result of the disparity in future earning capacity and expectations – where an adjustment is made so as to provide the husband with a future entitlement to receive his disability pension and to reflect a “just and equitable” distribution of the parties property. |
| Legislation: Family Law Act 1975 (Cth), ss.65L, 60CC(2)(b), 75(2), 79(2), 79(4) |
| Cases cited: Pastrikos and Pastrikos (1980) FLC 91-987 Stanford and Stanford Lots of Questions – Very Few Answers, Martin Barfeld QC of the Victorian Bar |
| Applicant: | MR MCRAE |
| Respondent: | MS WILKIE |
| File Number: | TVC 1216 of 2014 |
| Judgment of: | Judge Coker |
| Hearing dates: | 24, 25, 26, 27 October 2016 and 1, 2 August 2017 |
| Date of Last Submission: | 2 August 2017 |
| Delivered at: | Townsville |
| Delivered on: | 13 October 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: |
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- AGLC
- McRAE & WILKIE [2017] FCCA 2469
- Case
- [2017] FCCA 2469
- Decision Date
CaseChat Overview and Summary
The court was required to determine the parenting arrangements that were in the best interests of the five children, specifically addressing the father's contact with them and parental responsibility. Concurrently, the court had to make orders for the just and equitable distribution of the parties' limited property, considering the husband's disability and the wife's improved earning capacity. The court also needed to address the practicalities of implementing any property orders, particularly concerning superannuation entitlements.
In relation to parenting, the court ordered that the children live with their mother and that she have sole parental responsibility for their long-term care, welfare, and development, with specific joint responsibilities for decisions regarding the children's names and international relocation. All time the children spent with the father was suspended, but opportunities for contact were left open subject to the children's wishes, with communication to be facilitated through specific online platforms and by sending gifts. For property, the court ordered that the wife retain the proceeds from the sale of the matrimonial home and her interests in her superannuation fund. Crucially, the court allocated 100% of the husband's entitlements from two specific superannuation funds to the wife, with detailed provisions for the calculation and payment of these amounts, and also ordered that the husband retain his interest in another superannuation policy. The court also made orders for the parties to retain their respective chattels and other assets in their names, with mutual indemnities for liabilities.
Orders
Orders of the court
1.
That the children, V born (omitted) 2002, W born (omitted) 2004, X born (omitted) 2009, Y born (omitted) 2006 and Z born (omitted) 2007 (“the children”), live with their mother.
2.
That the mother have sole parental responsibility for the long term care welfare and development of the children save that:
(a) The mother and the father have joint parental responsibility for any decision concerning the names of the children,
(b) The mother and the father have joint parental responsibility for any decision concerning an international relocation of their residence.
3.
That the mother be permitted to relocate the residence of the child within Australia.
4.
Notwithstanding Order 2 the mother shall ensure that, save in the case of genuine emergency, the father is properly informed in advance of any major long-term decision that she intends to make concerning the education of or medical treatment of a child or the children.
5.
Each parent shall use the talkingparents.com web facility to communicate with each other concerning their respective households and the progress of them and the children in their households and shall do so once per month.
6.
The father shall spend no time with the children save as may be agreed between the parents.
7.
The father shall communicate with the children by:
(a) Using the kidsmail.org web facility, and
(b) By sending appropriate gifts and cards to the children corresponding with the birthday of each of them and Easter and Christmas.
8.
Notwithstanding Order 6, in the event that a child or children request to spend time with their father:
(a) The mother shall promptly inform the father of that fact, and
(b) The parents shall cooperate upon making such reasonable arrangements as may be necessary to facilitate that wish.
9.
Each parent shall ensure the other in informed of their residential, postal, email and telephone addresses and numbers but shall communicate with each other, save in the case of genuine emergency, using the talkingparents.com web facility.
10.
That the passports of the children currently held by this Court be released to the Mother.
11.
The Independent Child Lawyer is discharged.
Property Orders
12.
That the wife retain the total amount received from the sale of the matrimonial home at Property A and this order authorises the release of any such monies retained in the trust account of the wife’s solicitors to the wife.
13.
That the wife retain her interests in her own Superannuation Fund.
14.
That in accordance with Section 90MT (4) of the Family Law Act 1975, a base amount equivalent to 100% of the husband’s entitlement is allocated to the wife out of the husband’s interest in (omitted) Superannuation Fund accumulation account.
15.
That, in accordance with Section 90MT (1) (a) of the Family Law Act 1975:
(a) The wife (or the wife’s administrators, executors, beneficiaries, heirs or assigns) 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 husband in the (omitted) Superannuation Fund accumulation account (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) is correspondingly reduced by this Order.
16.
That the Trustee of the (omitted) Superannuation Fund accumulation account (“the trustee”) shall do all such 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 awarded to the wife in the immediately preceding clause of this Order; and
(b) Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the (omitted) Superannuation Fund accumulation account.
17.
These Orders bind the Trustee of the (omitted) Superannuation Fund accumulation account and these Orders take effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee, (provided however that if the Trustee has not been afforded procedural fairness then the operative time be 28 days from the date of service of this order)
18.
That, after service of the payment of the super split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the retention of the non-member spouse interest in the wife’s name in the (omitted) Superannuation Fund accumulation account.
19.
That the Court notes:
(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 (omitted) Superannuation Fund accumulation account made after the trustee has created a new interest in the wife’s name in the (omitted) Superannuation Fund accumulation account are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
20.
That in the event that either party refuses or neglects to sign any documents or do any act necessary to give effect to the terms of these Orders (within seven (7) days of a written request to do so), the Registrar of the Federal Circuit Court of Australia at Townsville, is hereby appointed pursuant to section 106A of the Family Law Act 1975, to execute all such documents on behalf of the defaulting party and to do all such acts and things as are necessary to give validity and operation to the said Orders.
21.
That in accordance with Section 90MT (4) of the Family Law Act 1975, a base amount equivalent to 100% of the husband’s entitlement is allocated to the wife out of the husband’s interest in (omitted) Superannuation Fund defined benefit account.
22.
That, in accordance with Section 90MT (1) (a) of the Family Law Act 1975:
(a) The wife (or the wife’s administrators, executors, beneficiaries, heirs or assigns) 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 husband in the (omitted) Superannuation Fund defined benefit account (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) is correspondingly reduced by this Order.
23.
That the Trustee of the (omitted) Superannuation Fund defined benefit account (“the trustee”) shall do all such 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 awarded to the wife in the immediately preceding clause of this Order; and
(b) Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the (omitted) Superannuation Fund defined benefit account.
24.
These Orders bind the Trustee of the (omitted) Superannuation Fund defined benefit account and these Orders take effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee, (provided however that if the Trustee has not been afforded procedural fairness then the operative time be 28 days from the date of service of this order).
25.
That, after service of the payment of the super split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the retention of the non-member spouse interest in the wife’s name in the (omitted) Superannuation Fund defined benefit account.
26.
That the Court notes:
(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 (omitted) Superannuation Fund accumulation account made after the trustee has created a new interest in the wife’s name in the (omitted) Superannuation Fund defined benefit account are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
27.
That in the event that either party refuses or neglects to sign any documents or do any act necessary to give effect to the terms of these Orders (within seven (7) days of a written request to do so), the Registrar of the Federal Circuit Court of Australia at Townsville, is hereby appointed pursuant to section 106A of the Family Law Act 1975, to execute all such documents on behalf of the defaulting party and to do all such acts and things as are necessary to give validity and operation to the said Orders.
28.
That the husband retain his interest in the (omitted) Superannuation Fund policy.
29.
That both parties do all acts and things and execute all such documents as are necessary to give effect to the terms of these Orders.
30.
That otherwise each party retain, as and for their own property absolutely, all their right, title and interest in and to chattels, including motor vehicles, whitegoods, furniture, bank accounts and any other interest held in their name as and for their own property absolutely and indemnify and keep indemnified the other party in relation to any and all liabilities attaching to such property.
31.
That each party be granted liberty to apply within 28 days of the date of this order in relation to any point of clarification of the orders and in respect of costs.
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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