FAMILY COURT OF AUSTRALIA
| NIELSEN & SPRINGER | [2019] FamCA 667 |
| FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child – Where the wife seeks to relocate to Northern New South Wales with the children – Where the husband opposes – Where the children have special needs and have medical conditions requiring ongoing management and therapy – Where the parties are not able to communicate effectively – Where the wife seeks sole parental responsibility – Orders FAMILY LAW – PROPERTY SETTLEMENT – Where each party seeks an order for property settlement – Where it is just and equitable to make an order – Contributions – Property acquired before marriage – Superannuation – Percentage adjustments – Orders FAMILY LAW – SPOUSAL MAINTENANCE – Lump sum – Where the wife seeks spousal maintenance for a defined period following settlement – Where the period of maintenance would be shorter if permitted to relocate and more extensive if not permitted to relocate – Where the husband asserts he does not have the financial capacity to meet an order for spousal maintenance – Where an existing order exists for spousal maintenance – Where the husband is not able to meet the payments from his income – Orders |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 75(2), 79 |
| AMS v AIF (1999) 199 CLR 160 Beckham v Desprez [2015] FamCAFC 247 Bevan & Bevan [2013] FamCAFC 116 Blanding v Blanding [2016] FamCAFC 21 Bulow & Bulow [2019] FamCAFC 3 Clauson & Clauson (1995) FLC 92-595 Godfrey & Sanders [2007] FamCA 102 Mazorski & Albright [2007] FamCA 520 Pierce v Pierce (1999) FLC 92-844 Stanford & Stanford (2012) 247 CLR 108 Starr & Duggan [2009] FamCAFC 115 Strange v Hybinett (1988) VR 418 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Mr Nielsen |
| RESPONDENT: | Ms Springer |
| FILE NUMBER: | ADC | 1483 | of | 2017 |
| DATE DELIVERED: | 17 September 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 27 - 30 May 2019 and 18 July 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | CG Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Georgina Parker Lawyers |
Orders
That the wife have the sole parental responsibility for B born … 2008 (“B”), C born … 2010 (“C”) and D born … 2012 (“D”) (collectively “the children”).
That the children live with the wife.
That the children spend time with the husband as follows:-
(a)Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Monday and if Monday is a public holiday or pupil free day THEN the children spend time with the husband to the commencement of school on Tuesday;
(b)For one half of each of the short end of term and Christmas school holidays at times to be agreed between the parties but failing agreement for the first half of the school holiday period in 2019 and in each alternate…
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- AGLC
- NIELSEN & SPRINGER [2019] FamCA 667
- Case
- [2019] FamCA 667
- Decision Date
CaseChat Overview and Summary
The court was required to determine the paramount issue of the children's best interests in relation to the proposed relocation, the division of the parties' property, and the wife's claim for spousal maintenance. The court also considered the parties' limited communication and the husband's asserted financial incapacity to meet spousal maintenance obligations from his income.
Berman J ordered that the wife have sole parental responsibility for the children and that the children live with her. The court also made detailed orders regarding the children's time with the husband, including alternate weekends, half of school holidays, and specific arrangements for public holidays and birthdays. Further orders addressed the children's passports, the wife's retention of the children's Country Z passports, and the husband's retention of the children's Australian passports. The court also ordered the husband to pay the wife a lump sum of $8,640 by way of spousal maintenance. In relation to property settlement, the court ordered that the wife receive 50% of the husband's entitlement to the Country F pension, a settlement sum of $45,998 to be paid by the husband to the wife within 21 days, and a base amount of $136,904 from the husband's interest in G Super, to be paid to the wife in accordance with the Family Law (Superannuation) Regulations 2001 (Cth).
Orders
Orders of the court
1.
That the wife have the sole parental responsibility for B born … 2008 (“B”), C born … 2010 (“C”) and D born … 2012 (“D”) (collectively “the children”).
2.
That the children live with the wife.
3.
That the children spend time with the husband as follows:-
(a) Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Monday and if Monday is a public holiday or pupil free day THEN the children spend time with the husband to the commencement of school on Tuesday;
(b) For one half of each of the short end of term and Christmas school holidays at times to be agreed between the parties but failing agreement for the first half of the school holiday period in 2019 and in each alternate year thereafter and for the second half of the school holiday period in 2020 and in each alternate year thereafter;
(c) For such other times as the parties may agree.
4.
That the children spend time with the parties as follows:-
(a) On Mother’s Day and Father’s Day in each year:-
(i) Between 5.00 pm on the Saturday preceding Mother’s Day until 5.00 pm on Mother’s Day the children will spend time with the wife;
(ii) Between 5.00 pm on the Saturday preceding Father’s Day until 5.00 pm on Father’s Day the children will spend time with the husband;
(b) On the children’s birthdays each year:-
(i) If the child’s birthday falls on a day that is not a school day and the husband would not otherwise be spending time with the child THEN the children will spend time with the husband from 2.00 pm until 7.00 pm;
(ii) If the child’s birthday falls on a day that is not a school day and the husband has the care of the child THEN the children will spend time with the wife from 2.00 pm until 7.00 pm;
(iii) If the child’s birthday falls on a school day and the husband would not otherwise have the care of the child THEN the children will spend time with the husband from the conclusion of school until 6.30 pm;
(iv) If the child’s birthday falls on a school day and the wife would not otherwise have the care of the child THEN the children will spend time with the wife from the conclusion of school until 6.30 pm.
5.
That for the Christmas period the children will spend time with the parties as follows:-
(a) With the husband from 3.00 pm on 25 December 2019 to 3.00 pm on 26 December 2019 and each alternate year thereafter PROVIDED HOWEVER that the said children shall be with the wife from 3.00 pm on 24 December 2019 to 3.00 pm on 25 December 2019 and each alternate year thereafter;
(b) With the wife from 3.00 pm on 25 December 2020 to 3.00 pm on 26 December 2020 and each alternate year thereafter PROVIDED HOWEVER that the said children shall be with the husband from 3.00 pm on 24 December 2020 to 3.00 pm on 25 December 2020 and each alternate year thereafter.
6.
That the husband’s time as set out in order (3)(a) herein shall be suspended during all periods of school holidays.
7.
That the parties be at liberty to attend the children’s kindergarten and/or schools for parent/teacher meetings, concerts and all functions to which parents are usually invited.
8.
That the parties shall be at liberty to receive copies of the children’s kindergarten and/or school reports, school photographs and other information usually provided to parents.
9.
That the wife shall provide the husband with reports with respect to the health and special needs of each of the children as may be requested by the husband and he shall be at liberty to contact the children’s therapists, general medical practitioners or specialist medical practitioners or allied health professionals PROVIDED such contact and/or communication shall be at the husband’s expense.
10.
That each party shall be at liberty to take the children on an overseas holiday at least annually PROVIDED:-
(a) The party requesting the holiday time shall provide forty two (42) days written notice to the other party;
(b) Both parties consent in writing to the holiday occurring if some or all of the proposed period does not coincide with school holidays;
(c) That in the Christmas school holiday period commencing 2019 and each alternate year thereafter the wife at her election can seek the children’s time with her be extended to thirty (30) days;
(d) That in the Christmas school holiday period commencing 2020 and each alternate year thereafter the husband at his election can seek the children’s time with him be extended to thirty (30) days.
11.
When giving notice of any intended holidays each party shall provide the other with the following information:-
(a) An itinerary;
(b) Flight and accommodation details;
(c) Contact details for the duration of overseas travel.
12.
That each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within forty eight (48) hours of such change occurring.
13.
That the husband sign all such documents as may be required by the Australian Federal Police to enable the children to travel outside the Commonwealth of Australia.
14.
That within seven (7) days of documents being presented to the husband, he shall sign all such documents as may be required for the children to obtain an Australian citizenship and to maintain both their Country Z passports and when approved their Australian passports.
15.
The wife shall retain the children’s Country Z passports in her possession.
16.
The husband shall retain the children’s Australian passports in his possession.
17.
That the husband pay to the wife by way of lump sum spousal maintenance the sum of EIGHT THOUSAND SIX HUNDRED AND FORTY DOLLARS ($8,640).
18.
That the wife receive fifty (50) per cent of the husband’s entitlement to the Country F pension to be calculated for the period from the date of cohabitation in January 2007 until the date of the parties divorce order being 18 May 2018.
19.
That in full and final settlement of all property issues as between the parties:-
(a) The husband pay to the wife the settlement sum of FORTY FIVE THOUSAND NINE HUNDRED AND NINETY EIGHT DOLLARS ($45,998) on or before twenty one (21) days of the date of this order NOTING that the settlement sum does not include the amount by way of lump sum maintenance.
20.
Pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) the wife is entitled to be paid the base amount of ONE HUNDRED AND THIRTY SIX THOUSAND NINE HUNDRED AND FOUR DOLLARS ($136,904) from the husband’s interest in G Super, member number 14014865.
21.
In accordance with s 90XT(1)(a) of the Act whenever a splittable payment becomes payable with respect to the husbands interest in G Super, the Trustee shall pay to the wife the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount referred to in paragraph 20 herein and there shall be a corresponding reduction in the entitlement the husband would have had but for this Order.
22.
Paragraph 20 shall take effect from the operative time, being the beginning or end of the fourth business day after the date of these Orders.
23.
Having been afforded procedural fairness the Trustee of G Super shall be bound to observe the provisions of paragraph 20 herein, the Act and the Regulations.
24.
Within seven (7) days of the date of this order the wife shall:
(a) Serve a copy of this order upon the Trustee of G Super; and
(b) Give notice in writing to the Trustee of G Super pursuant to s 72 of the Regulations.
25.
Each party and the Trustee has liberty to apply on not less than three (3) business days’ notice in respect of the implementation of the superannuation splitting orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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