Merritt and Richards (No 2) - [2016] FamCA 66

FAMILY COURT OF AUSTRALIA

MERRITT & RICHARDS (NO 2)

[2016] FamCA 66

FAMILY LAW – PARENTING AND PROPERTY PROCEEDINGS – Undefended.
FAMILY LAW – PARENTING - Father violent justifying specific injunctive orders to complement intervention orders that permit him to make arrangement including negotiation of child contact matters – Orders mean that the father has to apply to the Court.

FAMILY LAW – PROPERTY – Limited property and father may have hidden assets – All property otherwise in the power or control and ownership of the mother – Father's only interest in property is small sum of superannuation – Orders that there be a splitting order to transfer those interests to the mother.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Black and Kellner (1992) FLC 92-287
Briese and Briese (1986) FLC 91-713
De Winter and De Winter (1979) 4 Fam LR 583
Goode and Goode [2006] FamCA 1346; (2006) FLC 93,286
Runcorn and Raine (unreported [2008] FamCA 837)
Steinbrenner and Steinbrenner [2008] FamCAFC 193

APPLICANT:

Ms Merritt

RESPONDENT:

Mr Richards

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGC

2014

DATE DELIVERED:

11 February 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

1 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Phelan

SOLICITOR FOR THE APPLICANT:

Meier Denison Guymer

THE RESPONDENT:

No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O'Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McCormack & Co

Orders

That the mother have sole parental responsibility for the children C born … 2005, D born … 2007 and E born …2008.
That the children live with the mother.
That the father be restrained from contacting the mother for the purposes of making arrangements for any form of contact with the children.
That to the extent necessary, the mother have sole parental responsibility for signing any necessary document to obtain a passport (or a renewal of a passport) for each of the three children without the necessity to obtain the consent of the father.
That the monies held on trust by Meier Denison Guymer Pty Ltd, Solicitors, be released to the mother (or at her instructions) and this order shall be sufficient warrant to enable the said solicitors to release the funds notwithstanding their position as trustees for the parties.
Whenever a splittable payment becomes payable in respect of the interest of Mr Richards (Member No …) in Q Super, the mother (Ms Merritt) be paid 100 per cent of such splittable payment and there be a corresponding reduction in the entitlement that Mr Richards would otherwise have received but for this order.
This order has effect from the operative time which is four days after the sealed copy of this order is served upon the trustee of Q Super.
This order binds the trustee of the Q Super.
Whenever a splittable payment becomes payable in respect of the interest of Mr Richards (Member No …) in AMP Retirement Savings Account Fund, the mother (Ms Merritt) be paid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Merritt and Richards (No 2)

Details

AGLC: Merritt and Richards (No 2) [2016] FamCA 66
Case: [2016] FamCA 66
Decision Date: 11 February 2016

CaseChat Overview and Summary

In *Merritt and Richards (No 2)*, Cronin J considered parenting and property proceedings between the mother, Ms Merritt, and the father, Mr Richards. The proceedings were undefended. The dispute involved the mother seeking sole parental responsibility for the parties' three children, and orders concerning the division of limited property, with concerns raised about potential hidden assets by the father.

The court was required to determine the appropriate parenting orders, specifically whether the mother should have sole parental responsibility and whether the father should be restrained from contacting the mother regarding child contact arrangements. Additionally, the court had to determine how to divide the parties' property, given the limited assets and the father's only apparent interest being a small sum in superannuation.

Cronin J ordered that the mother have sole parental responsibility for the children and that they live with her. The father was restrained from contacting the mother for the purpose of making arrangements for child contact, with the mother having sole responsibility for obtaining passports for the children. Regarding property, the court ordered that 100 per cent of any splittable payment from the father's superannuation interests in Q Super and AMP Retirement Savings Account Fund be paid to the mother. Each party was to retain their existing property, with any interest of the other party expunged, and each party was to be solely liable for any encumbrances on property in their possession. Monies held on trust by solicitors were to be released to the mother.

Orders

Orders of the court

That the mother have sole parental responsibility for the children C born … 2005, D born … 2007 and E born …2008.

That the children live with the mother.

That the father be restrained from contacting the mother for the purposes of making arrangements for any form of contact with the children.

That to the extent necessary, the mother have sole parental responsibility for signing any necessary document to obtain a passport (or a renewal of a passport) for each of the three children without the necessity to obtain the consent of the father.

That the monies held on trust by Meier Denison Guymer Pty Ltd, Solicitors, be released to the mother (or at her instructions) and this order shall be sufficient warrant to enable the said solicitors to release the funds notwithstanding their position as trustees for the parties.

Whenever a splittable payment becomes payable in respect of the interest of Mr Richards (Member No …) in Q Super, the mother (Ms Merritt) be paid 100 per cent of such splittable payment and there be a corresponding reduction in the entitlement that Mr Richards would otherwise have received but for this order.

This order has effect from the operative time which is four days after the sealed copy of this order is served upon the trustee of Q Super.

This order binds the trustee of the Q Super.

Whenever a splittable payment becomes payable in respect of the interest of Mr Richards (Member No …) in AMP Retirement Savings Account Fund, the mother (Ms Merritt) be paid 100 per cent of such splittable payment and there be a corresponding reduction in the entitlement that Mr Richards would otherwise have received but for this order.

10.

This order binds the trustee of AMP Retirement Savings Account Fund.

11.

This order has effect from the operative time which is four days after the sealed copy of this order is served upon the trustee of AMP Retirement Savings Account Fund.

12.

That each party retain and by this order, any interest of the other is expunged, in all other property owned by or in the possession of the holder of that property as of this date.

13.

That to the extent that any item of property in the possession of either party is encumbered by any liability, the person who is the owner of that property shall be solely liable for and indemnify the other against such liability.

14.

That the Independent Children’s Lawyer be discharged from the proceedings.

15.

That the mother be at liberty to provide a copy of these orders and reasons given this day to any health professional or school involved with the said children.

16.

That a copy of this order be served upon the father at his last known email address by the solicitors for the mother.

17.

That save as to any applications for costs, the application of the mother is dismissed and any application by the father is otherwise struck out.

18.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES:

A. That by virtue of paragraph 1 of these orders, the mother does not need the consent of the father to obtain passports for the three children.

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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