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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CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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