Morishita & Vartanian

Case [2024] FedCFamC1F 26


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Morishita & Vartanian [2024] FedCFamC1F 26

File number(s): CAC 1369 of 2021
Judgment of: GILL J
Date of judgment: 23 February 2024
Catchwords:

FAMILY LAW – PARENTING – Both parties seeking sole parental responsibility – Where the father has been diagnosed with PTSD and a major depressive disorder as a result of workplace-related injuries – Parenting capacity – Nature of the relationship between the father and the children – Whether the mother has undermined the relationship between the children and the father –Emotionally abusive conduct by the father directed to the mother – Where the father accepted that the children and the mother had experienced him as frightening at times – Children resistant to time with the father – Failure of supervised time – Where the parties do not have a working coparenting relationship – Sole parental responsibility – Children to live with the mother – No order for time with the father.

FAMILY LAW – PROPERTY – Where the father has been declared totally and permanently incapacitated and is receiving various payments following his medical retirement – Characterisation of these payments – Impact of reduction in super balance on the father’s payments – Father’s payments do not allow him to accumulate superannuation – Consideration of present and future needs – Global division 55/45 in favour of the mother – Father resistant to splitting of his superannuation interest – Mother seeking splitting of superannuation at less than 55/45 – Balance of adjustment from current assets – Difference in characteristics between superannuation and current assets.

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 65Y(2)(b); 90SF, 90SM & 90XT

Family Law (Superannuation) Regulations 2001 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 21

Cases cited:

Archer v Comcare (2000) 101 FCR 30

Bevan & Bevan [1993] FamCA 95

Dickons & Dickons (2012) 50 Fam LR 244

Eastley & Eastley [2022] FedCFamC1A 101

Grier & Malphas (2016) 55 Fam LR 107

Isles & Nellisen [2022] FedCFamC1A 97

Marsden & Winch (No 3) [2007] FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

Stanford v Stanford [2012] HCA 52

Trevi & Trevi [2018] FamCAFC 173

Welch & Abney [2016] FamCAFC 271

Division: Division 1 First Instance
Number of paragraphs: 368
Date of hearing: 31 October 2023, 1-2 November 2023, 27-29 November 2023 and 1 February 2024
Place: Canberra
Counsel for the Applicant: Mr Haddock
Solicitor for the Applicant: Gabbedy Milson Lee
Counsel for the Respondent: Dr Behrens
Solicitor for the Respondent: Neilan Stramandinoli Family Law
Counsel for the Independent Children's Lawyer: Ms Yu
Solicitor for the Independent Children's Lawyer: Infinity Legal

ORDERS

CAC 1369 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MORISHITA

Applicant

AND:

MS VARTANIAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

23 FEBRUARY 2024

THE COURT ORDERS THAT:

PARENTING

1.All previous parenting orders be discharged.

2.The mother shall have sole parental responsibility for the children…

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AGLC
Morishita & Vartanian [2024] FedCFamC1F 26
Case
[2024] FedCFamC1F 26
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was tasked with resolving a complex dispute between Mr Morishita and Ms Vartanian, encompassing both parenting and property matters. The primary parenting issue revolved around determining the best interests of their two children, X and Y, in the context of the parents' conflicting claims for sole parental responsibility. This included assessing the father's mental health conditions, the nature of his relationship with the children, and the mother's alleged undermining of the father-child relationship. The property dispute centred on the characterisation and distribution of the father's income and superannuation, particularly in light of his medical retirement and the impact of these changes on the overall property settlement.

In addressing the parenting dispute, the court considered the statutory framework provided by the Family Law Act 1975, particularly the paramountcy of the children's best interests as outlined in s 60CA. The court gave significant weight to the statutory objects and principles, as well as the primary and additional considerations under s 60CC. It was noted that while the children might benefit from a meaningful relationship with both parents, this consideration could be outweighed by the necessity to protect them from potential harm. The court concluded that the best interests of the children were served by awarding sole parental responsibility to the mother, with specific provisions for the father's involvement, including notification and consultation on significant decisions, and the mother's obligation to provide information updates and facilitate communication.

For the property dispute, the court was required to characterise the father's payments following his medical retirement and to determine a fair division of the parties' assets, including superannuation. The court considered the father's incapacity, the impact on his ability to accumulate superannuation, and the present and future needs of both parties. Ultimately, the court ordered a global division of 55/45 in favour of the mother, with specific provisions for the distribution of the proceeds from the sale of their property and the splitting of the father's superannuation. The court also imposed restrictions on the father's ability to reduce his superannuation balance until the splitting order was implemented.

The final orders provided for sole parental responsibility for the mother, with specific arrangements for the father's involvement and communication. For the property, the orders included the sale of their jointly owned property, with the proceeds to be divided according to the court's determination, and specific provisions for the father's superannuation to be split in favour of the mother.

Orders

Orders of the court

CAC 1369 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MORISHITA

Applicant

AND:

MS VARTANIAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

23 FEBRUARY 2024

THE COURT ORDERS THAT:

PARENTING

1. All previous parenting orders be discharged.

2. The mother shall have sole parental responsibility for the children X, born 2012 and Y, born 2014.

3. For any long-term decisions made in relation to the children:

(a) The mother shall notify the father of the proposed decision by email not less than fourteen (14) days prior to making the decision;

(b) Within seven (7) days of receiving the mother’s email, the father is to provide his views in relation to the proposed decision to be made;

(c) The mother is to consider any views expressed by the father in relation to the proposed decision; and

(d) Notify the father in writing once she has made a final decision.

4. The children are to live with the mother.

5. The mother is permitted to relocate the children’s residence.

6. The mother is to provide the father with an address to which the father may send the children cards and/or gifts for their birthdays and Christmas.

Information Sharing

7. The mother is to provide the father with an update by email as to the children’s circumstances once per month.

8. In the event that either child suffers an illness or medical emergency that requires immediate medical attention the mother will, as soon as practicable:

(a) Advise the father of the nature of the child’s condition including any diagnosis, treatment and prognosis;

(b) Advise the father of the full name and contact details for any health care practitioner or facility the child may attend upon for assessment or treatment;

(c) Authorise the health care practitioner or facility to contact the father in relation to the child’s diagnosis, treatment and prognosis and provide to the practitioner or facility with the father’s contact telephone number and email address to facilitate the same.

9. The mother shall do all thing necessary to authorise the father to receive, directly from the children’s school, a copy, at the father’s expense, of all information and documents ordinarily made available to parents, including but not limited to school reports, newsletters and photo order forms.

10. The mother and father are to keep each other informed of their email addresses and mobile phone numbers and are to advise one another of any changes to these details within 48 hours.

Overseas Travel

11. Pursuant to s 65Y(2)(b) of the Family Law Act 1975, the mother is permitted to travel with the children outside of the Commonwealth of Australia provided that she gives notice to the father of her intended departure and re-entry dates in writing no less than 28 days prior to departing Australia.

12. Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005, the mother is permitted to apply for, or renew, a passport for the children without the consent of the father.

Change of Name

13. The mother and father are to do all things required by the Births, Deaths and Marriages Registry to change the names of the children to as follows:

(a) X to X Morishita-Vartanian; and

(b) Y to Y Morishita-Vartanian.

14. For the purposes of Order 13 above:

(a) The mother will provide to the father’s solicitor a signed Change of Name form for each child within fourteen (14) days of this order;

(b) The father will sign the forms and return them to the mother’s solicitor within fourteen (14) days from receipt of same;

(c) The mother will lodge the forms with the Births, Deaths and Marriages Registry as soon as practicable thereafter; and

(d) The mother will be responsible for the payment of any application fees associated with changing the children’s names.

15. In the event of non-compliance with Order 14 above, a Judicial Registrar may sign the necessary documents on either parent’s behalf pursuant to s 106A of the Family Law Act 1975.

Restraints

16. The parties are restrained by injunction from:

(a) Physically disciplining the children; or

(b) Denigrating the other parent or members of their family in the presence or hearing of either of the children.

PROPERTY

17. All previous property orders be discharged.

The Suburb D Property

Sale of Property

18. Within 30 days of the date of these Orders (“the Due Date”), the parties do all such acts and things and sign all necessary documents to list the property known as C Street, Suburb D, Region B (“the Suburb D Property”) for sale.

19. For the purposes of Order 18 above:

(a) The parties place the Suburb D Property with an agent for sale to be agreed between the parties or in default of agreement with an agent (“the Agent”) nominated by the President of the Real Estate Institute of Region B.

(b) The market value of the property be as agreed between the parties or failing such agreement as determined by a valuer nominated by the President of the Real Estate Institute of Region B, such determination to be paid for equally by the parties.

(c) If the Suburb D Property is not sold within three months of the Due Date or if the Suburb D Property is sold and the sale subsequently does not proceed to completion the parties do all things necessary to offer the Suburb D Property immediately for sale by public auction by the Agent, the reserve price being the market value determined in accordance with Order 19(b).

(d) The parties execute all documents requested by the Agent as auctioneers for the sale of the Suburb D Property by auction.

(e) The parties execute a contract of sale.

(f) The parties cooperate in every way with the Agent in relation to the auction of the Suburb D Property including making the keys available for an inspection of the Suburb D Property at times requested by the Agent and ensuring that the Suburb D property is in a clean and neat condition at the time of inspection by the prospective purchasers.

(g) If the Suburb D Property is not sold at the auction within 21 days thereafter the parties shall meet the market price and sell the Suburb D Property at the best price, then obtainable and as determined in accordance with Order 19(b).

20. That parties do all things necessary to cause the proceeds of the sale of the Suburb D Property to be distributed as follows:

(a) To pay all costs commissions and expenses of the sale.

(b) To pay the usual rates adjustment.

(c) To pay the amount required to repay the loans secured by way of mortgage against the Suburb D property.

(d) To pay the balance then remaining (the net proceeds) as follows:

Payment to the father = 45% ($1,047,858 + the net proceeds) - $621,517

Payment to the mother = 55% ($1,047,858 + the net proceeds) - $426,341

21. That the liberty be reserved to either party to apply to the Court on seven days' notice to the other with respect to the terms and conditions of the sale.

22. That from the date of these Orders until completion of the Suburb D Property sale:

(a) The mother have the sole right to occupy the Property.

(b) Neither party shall mortgage or otherwise offer the Property for security.

(c) The mother shall bear the liability for the rates and utilities incurred during that period.

Superannuation

23. That the father is restrained from reducing the total amount of superannuation in his Superannuation Fund 1 interest to below $250,000 until such time as Order 25 has been implemented.

24. Orders 3-6 of the Orders dated 19 October 2022 (“superannuation flagging orders”), are hereby discharged and the payment flag on the member’s account be lifted allowing a payment split to occur.

25. That in accordance with section 90XT(l)(a) of the Family Law Act 1975 (“the Act”) whenever a splitable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of Mr Morishita from his interest in the Superannuation Fund 1, Ms Vartanian is entitled to be paid by the Trustee of the Superannuation Fund 1, the S Corporation (“the Trustee”), the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $200,000 and that there be a corresponding reduction in the entitlement Mr Morishita would have had but for this order.

26. The operative time for Order 25 be four business days after the service of a copy of the original final sealed Orders on the Trustee.

27. That Orders 25 and 26 bind the Trustee of the Superannuation Fund 1.

28.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By the end of the trial the parents and the ICL agreed that the children’s surnames should be changed to “Morishita-Vartanian”.STRUCTURE OF THIS JUDGMENT Given the divergence in the issues that relate to the parenting and the property disputes, discussion of the parenting dispute will be addressed first before analysis of the relevant legal principles and factual issues that relate to the property dispute.PRINCIPLES IN RELATION TO THE PARENTING DISPUTE The paramount consideration in determining what parenting order should be made is, pursuant to s 60CA of the Family Law Act 1975 (“the Act”), the best interests of each of the children. Those best interests are to be determined on consideration of the matters set out at s 60CC of the Act, to the extent that they arise in a particular case, and in accordance with the objects and principles set out in s 60B, and, where applicable in accordance with the reasoning process set out at s 65DAA. In an individual case both the objects and principles and the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest. In relation to the interplay between the considerations, in Marsden & Winch (No 3) [2007] FamCA 1364, Warnick and Thackray JJ observed that a primary judge is:… of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.[1] [1] Marsden & Winch (No 3) [2007] FamCA 1364, [78]. The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence. However, Warnick and Thackray JJ also noted that:It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.[2] [2] Ibid [77]. The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright (2007) 37 Fam LR 518, frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(f) which concerns the capacity of a parent to provide for the needs of a child, including emotional and intellectual needs will often form a part of the primary consideration relating to the benefits of meaningful relationship.

Ratio Decidendi

Legal Principle Established

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