FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mickelson & Mickelson (No 2) [2023] FedCFamC2F 1162
File number(s): NCC 2335 of 2018 Judgment of: JUDGE KEARNEY Date of judgment: 6 September 2023 Catchwords: FAMILY LAW – PARENTING – children aged nearly 14, 11, 9 & 6 – second round of litigation in 5 years – no contact with father since April 2021 when previous orders suspended pending further final determination – where the Court is satisfied the father poses a material possibility of risk of psychological and emotional harm to the children – coercive and controlling behaviour imposed on the family – inability to identify anything positive as to the mother’s contributions or parental relationship as primary caregiver – history of non-compliance with Court orders – no time or communication with father - restraints for personal protection appropriate – appropriate ongoing supports for children required - best interests of children
FAMILY LAW – PROPERTY – 10-year relationship – insufficient disclosure and evidence from the husband for an asset-by-asset approach - global approach taken – overall adjustment of 65%-35% in favour of wife – just and equitable
Legislation: Family Law Act 1975 (Cth) ss 68B, 68C, 60CC, 79, 105
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: AJO & GRO [2005] FamCA 195; (2005) FLC 93-219
Berys & Berys [2022] FedCFamC2F 1162
Best & Best [1993] FamCA 107
Bielen & Kozma [2022] FedCFamC1A 221
Black & Kellner [1992] FamCA 2; [1992] FLC 92-287
Blandford & Esmore [2022] FedCFamC1A 67
Blinko & Blinko [2015] FamCAFC 146
C & C [1998] FamCA 143
Cabbell & Cabbell [2009] FAMCAFC 205
Dickons & Dickons (2012) 50 Fam LR 24
Eastley & Eastley [2021] FedCFamC1F 212
Fields & Smith [2015] FamCAFC 57
Gadhavi & Gadhavi [2023] FedCFamC1A 117
Grier & Malphas [2016] FamCAFC 84
Hobson & Hobson [2020] FamCAFC 251
Horvat & Juric (No 3) [2022] FedCFamC1F 733
In the Marriage of Gill (1984) 9 Fam LR 969 at 981
In the Marriage of Kowaliw [1981] FamCA 70
In the Marriage of Townsend [1994] FamCA 144 at 81,654; (1994) 18 Fam LR 505
Isles & Nelissen [2022] FedCFamC1A 97
Jabour & Jabour [2019] FamCAFC 78
Knight & Ellington [2019] FamCA 488
Lovine & Connor and Anor [2012] FamCAFC 168
Martell & Martell [2023] FedCFamC1A 71
Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554; (2019) 368 ALR 583
Mazorski & Albright [2007] FamCA 520
Mezzacappa & Mezzacappa [1987] FamCA 20; (1987) FLC 91-853
Mickelson & Mickelson [2020] FCCA 2986
Napier & Hepburn [2006] FamCA 1316
NHC & RCH [2004] FamCA 633
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; 10 Fam LR 819
Petruski & Balewa [2013] FamCAFC 15
Pierce v Pierce [1998] FamCA 74; (1999) FLC 92-844
Prantage & Prantage [2015] FamCAFC 145
Russell & Close [1993] FamCA 62
Sedgley and Sedgley [1995] FamCA 154
Stanford & Stanford [2012] HCA 52; [2012] 247 CLR 108
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- AGLC
- Mickelson & Mickelson (No 2) [2023] FedCFamC2F 1162
- Case
- [2023] FedCFamC2F 1162
- Decision Date
CaseChat Overview and Summary
Judge Kearney concluded that the father posed a material possibility of risk of psychological and emotional harm to the children due to his coercive and controlling behaviour. The court found no positive contributions from the father as a primary caregiver and noted his history of non-compliance with court orders. Consequently, the court discharged all previous parenting orders and granted sole parental responsibility to the mother, prohibiting the father from any contact with the children. Injunctive restraints were imposed for the personal protection of the mother and the children, and appropriate ongoing supports for the children were mandated. Regarding the property division, the court adopted a global approach due to insufficient disclosure and evidence from the husband, resulting in an overall adjustment of 65%-35% in favour of the wife.
The court's final orders included discharging all previous parenting orders, granting the mother sole parental responsibility, prohibiting the father from any contact with the children, and imposing injunctive restraints for personal protection. The court also ordered a property adjustment, including the payment of specific amounts from a trust account to the wife and the husband, and restrained the husband from interfering with his superannuation interest pending a final determination on the superannuation split. Costs applications were subject to further orders, with specific timelines set for filing and serving relevant documents. The court expressed an expectation that the mother would facilitate family therapy for the children to address the impact of the litigation and parental conflict, although it acknowledged that failure to do so would not be critical given the mother's demonstrated capacity to meet the children's needs.
Orders
Orders of the court
NCC 2335 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS MICKELSON
Applicant
AND:
MR MICKELSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
6 SEPTEMBER 2023
THE COURT ORDERS THAT:
PARENTING
1. All previous parenting orders be discharged.
Parental Responsibility
2. The applicant, MS MICKELSON (‘the mother’) shall have sole parental responsibility for the children:
(a) W born 2009,
(b) X born 2012,
(c) Y born 2014 and
(d) Z born 2016
(‘the children’).
Live With /Spend Time With
3. The children shall live with the mother.
4. The children shall spend no time and have no communication with the respondent, MR MICKELSON (‘the father’).
Injunctive restraints
5. Pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’) and for the personal protection of the mother and children, the father is restrained from:
(a) Contacting the mother or the child/ren in any way or form whatsoever, except through a lawyer;
(b) Approaching or remaining within 100 metres of the mother and/or the child/ren;
(c) Attending, approaching or remaining within 100 metres of the home of the
(d) mother and the child/ren;
(e) Contacting, attending, approaching, or remaining within 100 metres of:
(i) Any school the child/ren may attend from time to time;
(ii) Any sporting or other activities the child/ren may attend or participate in;
(iii) Any counsellor, support service or other services that the child/ren may be engaged with, including but not limited to EE Service and FF Organisation;
(iv) Contacting or interfering with or disturbing the occupation of the mother;
(v) Attending any function to which the mother and the children are attending or any venue they attend and if he sees them he shall immediately remove himself from the said venue or event.
(vi) Removing the children from the care of the mother, or care of any person or organisation with whom the mother has placed the child or children
(vii) Getting another person to do what he is precluded from doing under this order.
6. The above order is an order made for the personal protection of the mother and the children, and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Act.
7. The s 68B order is made for the personal protection of the mother and the children will remain in place and in force until each respective child turns 18 years at which time the order shall have no further effect in protecting that child/children.
Passports
8. Pursuant to s 11 of the Australian Passports Act 2005 (Cth) the Minister may issue an Australian passport in the name of W born 2009, X born 2012, Y born 2014 and Z born 2016 without the necessity of obtaining the consent of the children’s father for that purpose.
9. All officers of the Australian Passport Office and any other Regulatory body responsible for the issue of Australian passports are authorised and directed to issue any new passports for the named children upon the application by the children’s mother MS MICKELSON, without the necessity for the children’s father MR MICKELSON to provide his written consent to the issue of such passports.
10. Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the children shall be issued with an Australian Travel document and may travel internationally with the mother, without the need for the mother to obtain the father’s consent.
Miscellaneous - parenting
11. The mother be a liberty to provide a copy of these Orders to any school the children may attend, any organisation the children may be involved with or any person the mother may have placed the children in the care of.
12. By 4.00pm on 20 September 2023, Mx GG (‘the family consultant’) is to meet with the children (either face-to-face or audio-visually) to explain the effect of these Orders to them AND to give effect to this Order, IF the family consultant requires the mother to travel with the children for this purpose, then the mother shall comply with any reasonable request to do so.
13. Pursuant to s 117(4)(a) of the Act, the oral application for costs made by the ICL against the father is withdrawn and dismissed.
14. The Independent Children’s Lawyer (‘the ICL’) is discharged.
15. Pursuant to ss 65DA(2) and 62B of the Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
PROPERTY ADJUSTMENT
Trust Account
16. By 4.00pm 13 September 2023, the parties are to cause for and do all acts necessary to authorise the payment of $317,704 to the applicant, MS MICKELSON (‘the wife’) from the trust account held for the parties’ benefit with Ashby Family Solicitors (‘the trust account’) in a manner directed in writing by the wife.
17. Contemporaneous with Order 16 above, the parties are to cause for and do all acts necessary to authorise from the remaining balance of the trust account –
(a) the payment of $6,740 to the wife as directed in writing by the wife in satisfaction of three costs orders made 25 June 2021, 22 February 2022 and 27 June 2022; and
(b) the balance to the respondent, MR MICKELSON (‘the husband’) in a manner directed in writing by the husband.
Miscellaneous – property adjustment
18. Except as specifically provided for in these Orders, each party shall:
(a) Be declared to be the sole owner and beneficiary to the exclusion of the other of all annuities, retirement pensions, life insurance policies and the like of whatsoever nature and wheresoever located held in each of their respective names.
(b) Be solely liable for all debts and liabilities held in his or her name as at these Orders including but not limited to credit cards personal loans or motor vehicle leases, taxation liabilities and the like.
(c) Do all acts and things and sign all documents necessary to close and/or discharge whatever the case may be, all joint credit cards, bank accounts, investments, utilities and any and all joint liabilities.
(d) Be declared the sole legal and beneficial owner of all other items of property presently in their respective possession or control including but not limited to all money, shares, motor vehicles, furniture, furnishings and personal effects.
(e) Do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
19. From the date of these Orders and unless otherwise specified in these Orders and except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a) Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles;
(b) Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;
(c) Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other; and
(d) Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.
20. In the event that either party refuses to execute any deed or instrument necessary to give effect to these Orders, within seven (7) days of being requested so to do, the Registrar of the Court be appointed pursuant to s 106A of the Act 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 of the deed or instrument.
UNTIL FURTHER ORDER OF THE COURT IT IS ORDERED THAT:
Superannuation
21. Pursuant to s 114 of the Act, the husband is restrained and an injunction shall issue prohibiting him from withdrawing, drawing down, transferring or changing his interest in relation to his interest in Superannuation Fund 1, including by instructing, authorising or permitting any third party to do so.
22. The Orders proposed by the Court to be made to give effect to a superannuation split of part of the husband’s interest in Superannuation Fund 1 to the wife are marked exhibit “G” and attached to these Orders.
23. By 4.00pm 7 September 2023, the wife is to serve the trustee of Superannuation Fund 1 (‘the trustee’) with a sealed copy of these Orders together with a copy of exhibit “G” PROVIDED THAT the wife shall beforehand redact all Orders and Notations save for Orders 21 to 25 and Notation B because the balance of the Orders and Notations are extraneous to the giving of procedural fairness to the trustee.
24. By 4.00pm 5 October 2023, the wife is to file and serve on the husband only, an affidavit proving compliance with Order 23 and deposing (and annexing) any further correspondence (including any attachments to such correspondence) that may have been exchanged between the wife (or her solicitor) and the trustee.
25. The outstanding superannuation splitting aspect of the proceedings is adjourned for chambers hearing at 9.30am on 10 October 2023 to consider whether a superannuation splitting order can be made PROVIDED THAT if in the meantime, the Court is satisfied that the trustee has been given procedural fairness of a form of Order that accords with the court’s intention as to the quantum of the superannuation split THEN this hearing may be vacated without notice and final orders made in chambers in relation to a superannuation splitting order in the sum of $266,897 from the husband’s Superannuation Fund 1 to the wife’s nominated superannuation account in order to finalise the financial aspect of the proceedings.
IT IS FURTHER ORDERED THAT:
26. Save for the outstanding aspect pertaining to the splitting of the husband’s superannuation interest and any prospective costs application/s, all outstanding applications in relation to the financial proceedings are otherwise dismissed.
27. By 4.00pm on 5 October 2023, any party seeking an order for costs shall file and serve an Application in a Proceeding and supporting affidavit(s) and financial statement (if applicable).
28. By 4.00pm on 19 October 2023, the other party shall file and serve a Response to an Application in a Proceeding, with supporting affidavit(s) and financial statement (if applicable).
29. In the event that an application for costs is received, THEN pursuant to rr 5.02(2)(c) and 5.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the application will be listed for hearing before Judge Kearney for two (2) hours with no cross-examination.
THE COURT NOTES THAT:
A. During cross-examination of the family consultant, the Court heard that the children would benefit from family therapy involving just the four children (not the parents) that would look like each child being separately assessed and then all four of them being brought together to have an opportunity to explore issues including their experiences of the litigation, the parental conflict and the outcome from the making of final orders as well as their feelings (including of grief). Through that prism, rather than make an Order that would impinge on the allocation of sole parental responsibility, the Court has an expectation that the mother will attempt to find someone able to facilitate such therapy albeit that if the therapy does not commence and/or proceed as expected, the Court will not be critical of that outcome given it has every confidence in the mother’s capacity to do her best to meet the children’s needs and/or there may be unexpected impediments such as no one being able to facilitate the therapy, the cost being beyond the mother’s means and/or one or more of the children being unwilling to engage and/or remain connected to the process.
B. It was acknowledged that there is no current evidence of the trustee having been accorded procedural fairness
C. In the event, that a party fails to comply with the orders made regarding the costs hearing and/or fails to appear at such hearing; THEN consideration will be given to the hearing proceeding on an undefended basis.
D. Pursuant to s 117(4)(a) of the Act, the Independent Children’s Lawyer withdrew her oral application for costs against the parties.
Exhibit G
1. A base amount of $266,897 is allocated, as required by s 90XT (4) of the Family Law Act 1975 (Cth), to MS MICKELSON out of MR MICKELSON’S interest in Superannuation Fund 1.
2. In accordance with paragraph 90XT (1 ) (a) of the Family Law Act 1975 (Cth):
(a) MS MICKELSON is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 ; and
(b) MR MICKELSON’S entitlement to payments out of his interest in Superannuation Fund 1, and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.
3. The trustee of Superannuation Fund 1 ("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 and the Family Law (Superannuation) Regulations 2001, the entitlement created for Ms Mickelson by clause 1 of this order and
(b) Pay the entitlement whenever the Trustee makes a splittable payment out of Mr Mickelson's interest in Superannuation Fund 1.
4. These orders shall take effect from the operative time and the operative time for this order is the 4th business day the Final Certified orders are served on Superannuation Fund 1.
5. This order binds the trustee of Superannuation Fund 1.
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
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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