FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLSON & MILLSON | [2014] FCCA 247 |
| Catchwords: FAMILY LAW – Parenting – whether there should be an order for sole or shared parental responsibility – religion – allegations of parent exposing children to pornography – financial – division and apportionment of debt. |
| Legislation: Family Law Act 1975, Pts. VII, VIII, Div. 12A, ss.4, 60B, 60CA, 60CC, 61DA, 64, 65DA, 65DAA, 75, 79 Federal Circuit Court Rules2001, r.15.28 |
| Waterford & Waterford [2013] FamCA 33 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 |
| Applicant: | MS MILLSON |
| Respondent: | MR MILLSON |
| File Number: | MLC 499 of 2013 |
| Judgment of: | Judge Harland |
| Hearing dates: | 2, 3, 4 and 5 December 2013 |
| Date of Last Submission: | 5 December 2013 |
| Delivered at: | Darwin |
| Delivered on: | 18 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Testart |
| Solicitors for the Applicant: | Bancroft Lawyers |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Leanne Cain & Associates |
ORDERS
Parenting Orders
That subject to order (2) the parents have equal shared parental responsibility for the children X born (omitted) 2000, Y born (omitted) 2003 and Z born (omitted) 2005 (“the children”).
For a period of 12 months from the date of these orders the wife will have sole parental responsibility for decisions concerning the children’s health, save that before making the decision about that issue the wife shall (unless matter is urgent rendering (a) to (d) impracticable):
(a)Advise the husband of the decision to be made;
(b)Seek the husband’s written response;
(c)Consider the husband’s response; and
(d)Advise the husband of the ultimate decision in writing.
BY CONSENT
The children live with the wife.
The children spend time with the father as follows:
(a)Each alternate weekend from the conclusion of school on Thursday until the commencement of school the following Monday morning and when such Monday is a school holiday the father return the children to school on the Tuesday morning;
(b)Each alternate Wednesday from the conclusion of school on Wednesday to the commencement of school on Thursday;
(c)For one half of each term school holiday being for the husband for the first half of such holidays to commence with the conclusion of school on the last day of school term and to continue until 6.00pm on the middle Saturday of the school holiday period for 2013 and in each alternate year thereafter when the husband’s time shall commence at 6.00pm on the middle Saturday of the holiday period until the commencement of the first day of…
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- Millson and Millson [2014] FCCA 247
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- [2014] FCCA 247
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CaseChat Overview and Summary
The court was required to determine the terms of parenting orders that would be in the best interests of the children, specifically addressing equal shared parental responsibility, the children's living arrangements, and the specific time each parent would spend with the children. Additionally, the court needed to make orders regarding the division of property and the allocation of responsibility for various debts and liabilities between the husband and wife. The court also considered an application to remove the children from an Airport Watch List.
Judge Harland made orders by consent regarding the parenting arrangements. The parents were granted equal shared parental responsibility for the children, subject to a 12-month period where the wife would have sole responsibility for health decisions, requiring consultation with the husband. The children were ordered to live with the wife, with detailed provisions for the father's time with the children, including alternate weekends, mid-week time, school holidays, birthdays, and Christmas. The orders also included provisions for communication between parents and children, changeovers, notification of addresses and travel details, and prohibitions against denigrating the other parent. The court also vacated previous orders and removed the children from the Airport Watch List.
In relation to property, the wife was declared the sole legal and beneficial owner of certain assets, including a company, a business name, her motor vehicle, superannuation, and bank accounts. The husband was declared the legal owner and beneficiary of other assets, including two companies, intellectual property, his superannuation, and bank accounts. The wife was made solely responsible for specific debts, including a Centrelink debt and a Mastercard debt, while the husband was made solely responsible for other listed liabilities and debts associated with his companies. The parties were ordered to indemnify each other in respect of liabilities related to the property retained by each. Finally, the husband was ordered to pay 65% of the debt owing to credit card groups within 42 days and to pay $500 per week for 42 weeks to the wife for arrears of maintenance.
Orders
Orders of the court
Parenting Orders
1.
That subject to order (2) the parents have equal shared parental responsibility for the children X born (omitted) 2000, Y born (omitted) 2003 and Z born (omitted) 2005 (“the children”).
2.
For a period of 12 months from the date of these orders the wife will have sole parental responsibility for decisions concerning the children’s health, save that before making the decision about that issue the wife shall (unless matter is urgent rendering (a) to (d) impracticable):
(a) Advise the husband of the decision to be made;
(b) Seek the husband’s written response;
(c) Consider the husband’s response; and
(d) Advise the husband of the ultimate decision in writing.
BY CONSENT
3.
The children live with the wife.
4.
The children spend time with the father as follows:
(a) Each alternate weekend from the conclusion of school on Thursday until the commencement of school the following Monday morning and when such Monday is a school holiday the father return the children to school on the Tuesday morning;
(b) Each alternate Wednesday from the conclusion of school on Wednesday to the commencement of school on Thursday;
(c) For one half of each term school holiday being for the husband for the first half of such holidays to commence with the conclusion of school on the last day of school term and to continue until 6.00pm on the middle Saturday of the school holiday period for 2013 and in each alternate year thereafter when the husband’s time shall commence at 6.00pm on the middle Saturday of the holiday period until the commencement of the first day of school of the next school term;
(d) On the children’s birthdays if not otherwise with the husband for three hours on a school day from after school until 6.30pm. Should the children’s birthday fall on a non school day and the children are with the husband, they shall be with the wife from 9.00am to 2.00pm and that all changeovers when not otherwise at school take place at the wife’s place of residence;
(e) On each parent’s birthday for three hours on a school day from after school until 6.30pm and if the birthdays are not a school day then from 9.00am to 2.00pm and that all changeovers when not otherwise at school take place at the wife’s place of residence;
(f) For the Christmas school holiday period 2013/2014 the children have contact with the husband from 6.00pm on the fourteenth day of the commencement of the school holiday period for the next fourteen days and the children be returned to the wife at 6.00pm on the fourteenth day, then from 6.00pm on the twenty-eighth day of the said holiday period for the next seven days and the children be returned to the wife at 6.00pm on the last day of the said holiday period and in each alternate year thereafter. For the Christmas school holiday period 2014/2015 the children spend time with the husband from the conclusion of school in the December school holidays for the next fourteen days and the children be returned to the wife at 6.00pm on the fourteenth day of the said holidays. Then from 6.00pm on the twenty-eighth day of the school holidays until 6.00pm on the thirty-fifth day of the school holidays;
(g) For the year 2013/2014 the children spend time with the husband from 6.00pm on 24 December 2013 until 3.00pm on 25 December 2013 with the husband to collect the children from and return the children to the wife’s residence and in the same sequence thereafter and for the year 2014 and 2015 the children spend time with the wife from 6.00pm 24 December until 3.00pm on 25 December and the husband to deliver the children to and collect the children from the wife’s place of residence;
(h) From 5.00pm the Saturday prior to Father’s Day until school Monday.
5.
Each parent shall, subject to the balance of these Orders, be entitled to telephone and speak with the children or to communicate with them by email or such other means as readily available at such times and with such frequency as that parent may desire save that such communications shall not relate to alterations in arrangements to contact and that any changes to contact arrangements must be as a result of an agreement between the husband and the wife and not involve negotiations with the children.
6.
Each parent shall, subject to the balance of these Orders, be entitled to telephone and speak with the children or to communicate with them by email or such other means as readily available at such times and with such frequency as that parent may desire save that such communications shall not relate to alterations in arrangements to contact and that any changes to contact arrangements must be as a result of an agreement between the husband and the wife and not involve negotiations with the children.
7.
Each parent shall for the purpose of telephone or email communication between the children and the other parent provide to the children such assistance as they may require but otherwise allow them to speak or communicate with privacy and without interruption, interference or distraction which shall include not preventing the children from receiving such telephone or email communication by confiscating the children’s telephones thereby preventing such communication.
8.
For the purposes of changeover each parent be responsible for delivering the children to the other at the commencement and conclusion of time save for changeovers at school.
9.
Each parent shall keep the other parent advised at all times of their residential address, email address and telephone number and shall advise of any changes to same as and when they occur and the same shall apply when either parent is spending time including holiday time with the children away from their usual residential address and on occasions when the children are travelling by aeroplane, the details of flight numbers and times of travel must be made available to the other parent.
10.
Each parent shall refrain from attending at the children’s school at the commencement and conclusion of the school day on any day that the other parent is to collect or deliver the children and shall do all things within their power to ensure no other persons so attends at their request or direction.
11.
Each parent shall forthwith and contemporaneous with the event advise the other parent of any significant illness or injury experienced or suffered by the children or any of them and including sufficient detail to enable the other parent to be consulted and advised with respect of medical treatment and to visit the child or children if hospitalised.
12.
Each parent shall forthwith do all things, sign all documents and give all consents, authorities and instructions as are necessary to allow, enable and permit each parent to obtain directly from any school attended by any of the children copies of school reports, newsletters, photographs or other documents or information as that parent may request and to cause each parent’s details to be recorded as both a parent and emergency contact person.
IT IS ORDERED
13.
Orders 3 and 4 of Orders made 11 February 2013 be vacated and the children consequently be removed from the Airport Watch List.
14.
Pursuant to section 68B of the Family Law Act 1975, each parent shall be and is hereby restrained from denigrating or speaking ill of the other parent to or in the presence or hearing of the children and shall do all things within their power and control to ensure that no other person does so, or if they do so or attempt to do so, remove the children from that environment.
Notation
(A) The parties intend to engage Ms H for counselling to assist them in managing the conflict between them and improve their communication with each other.
Property Orders
15.
The wife be declared the sole legal and beneficial owner of the following:
(a) (omitted) Pty Ltd;
(b) (omitted) (Business Name);
(c) Her motor vehicle;
(d) Superannuation standing in her name;
(e) Chattels and all personalty in her possession;
(f) Bank accounts standing in her name.
16.
The husband be declared the legal owner and beneficiary of the following:
(a) (omitted) Pty Ltd;
(b) (omitted) Pty Ltd;
(c) All intellectual property associated with any (omitted) or material he has authored including hard copy papers, computer software and any other soft copies of materials;
(d) Chattels and all personalty presently in his possession;
(e) Superannuation standing in his name;
(f) Bank accounts standing in his name.
17.
That the wife be declared solely responsible for and will indemnify and keep the husband indemnified with respect to the following debts:
(a) Centrelink debt;
(b) Master card debt.
18.
That the husband be declared solely responsible for and will indemnify and keep the wife indemnified with respect to the following debts:
(a) Any liability owing to (omitted);
(b) Any liability owing to (omitted);
(c) And liability owing to (omitted);
(d) Any liability owing to (omitted);
(e) Any liability associated with the (omitted) Pty Ltd;
(f) Any liability associated with (omitted).
19.
The husband and the wife indemnify each other in respect of all liabilities in relation to all property being retained by them and all liabilities presently standing in their respective names including credit cards, taxation liabilities and debts to any third parties.
20.
I declare that as between the husband and the wife, the husband is liable to pay 65% of the debt owing to Credit card groups and shall within 42 days of the date of these orders pay 65% of the owing to Credit card groups and provide to the wife proof of payment within 48 hours of having paid it.
Arrears of maintenance
21.
That the husband pay to the wife by way of direct deposit to the wife’s bank account the sum of $500 per week for 42 weeks with the first payment to be made on the first Thursday after this order is made and each Thursday thereafter.
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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