FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOVAK & NOVAK | [2019] FCCA 147 |
| Catchwords: FAMILY LAW – Property – just and equitable to make property orders – notional add back of sum of money spent on legal fees – adjustment to the Husband for initial contribution – contributions during relationship assessed to be equal – adjustment to the Wife pursuant to s.75(2) factors. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 75, 79, 90XT, 90XZA Federal Circuit Court Rules 2001 (Cth), r.21.15 |
| Cases cited: Beklar & Beklar [2013] FamCA 327 Bell & Nahos [2016] FamCAFC 244 Eddington & Eddington (No 2) (2007) FLC 93-349 Ulster & Viney [2016] FamCAFC 133 |
| Applicant: | MR NOVAK |
| Respondent: | MS NOVAK |
| File Number: | MLC 11080 of 2016 |
| Judgment of: | Judge C.E. Kirton QC |
| Hearing dates: | 7 and 8 March 2018 |
| Date of Last Submission: | 8 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hoult |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondent: | Ms Goldthorp |
| Solicitors for the Respondent: | Barbayannis Lawyers Pty Ltd |
ORDERS
Parenting
All previous parenting orders be discharged.
The Applicant (Husband) and the Respondent (Wife) have equal shared parental responsibility for the children [X], born … 2009, [Y], born … 2010 and [Z], born … 2012 (Children).
The Children live with the Wife.
The Children’s Time with the Husband
The Children spend time and communicate with the Husband as follows:
(a)During school term each alternate week from the conclusion of school or 3.30 pm Thursday until the commencement of school or 9.00 am Tuesday, commencing on 7 February 2019.
(b)For half of each of the school term holidays by agreement and failing agreement, the first half from the conclusion of school or 3.30 pm on the last day of school term until 5.00 pm on the middle Saturday of the school term holidays.
(c)During the long summer holidays on a week about basis with the Wife to have the first week, the Husband the second week and alternating each week thereafter.
(d)From 5.00 pm the day preceding Father’s Day until the commencement of school on the Monday following Father’s Day each year.
(e)From 4.00 pm Christmas Day until 6.00 pm Boxing Day in 2019 and each alternate year thereafter.
(f)From 10.00 am Christmas Eve until 4.00 pm Christmas Day in 2020 and in each alternate year thereafter.
(g)As may otherwise be agreed by the Husband and Wife in writing.
The Husband’s…
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- NOVAK & NOVAK [2019] FCCA 147
- Case
- [2019] FCCA 147
- Decision Date
CaseChat Overview and Summary
The court was required to determine the parenting arrangements for the children, specifically the time the children would spend with the Father, and whether an equal time arrangement was in the best interests of the children. In relation to property, the court had to assess the parties' contributions during the relationship, consider any adjustments under section 75(2) of the Family Law Act 1975 (Cth), and determine the just and equitable distribution of the parties' assets and liabilities.
The court ordered that all previous parenting orders be discharged and that the parties have equal shared parental responsibility for the children. However, the children were ordered to live with the Wife, and specific time arrangements were set out for the Children's time with the Husband, which did not amount to equal time. The court also made property orders, including a payment from the Husband to the Wife, the transfer of a property, and an allocation of a portion of the Husband's superannuation interest to the Wife. The court found that contributions during the relationship were equal and made an adjustment to the Wife pursuant to section 75(2) factors.
Orders
Orders of the court
Parenting
1.
All previous parenting orders be discharged.
2.
The Applicant (Husband) and the Respondent (Wife) have equal shared parental responsibility for the children [X], born … 2009, [Y], born … 2010 and [Z], born … 2012 (Children).
3.
The Children live with the Wife.
The Children’s Time with the Husband
4.
The Children spend time and communicate with the Husband as follows:
(a) During school term each alternate week from the conclusion of school or 3.30 pm Thursday until the commencement of school or 9.00 am Tuesday, commencing on 7 February 2019.
(b) For half of each of the school term holidays by agreement and failing agreement, the first half from the conclusion of school or 3.30 pm on the last day of school term until 5.00 pm on the middle Saturday of the school term holidays.
(c) During the long summer holidays on a week about basis with the Wife to have the first week, the Husband the second week and alternating each week thereafter.
(d) From 5.00 pm the day preceding Father’s Day until the commencement of school on the Monday following Father’s Day each year.
(e) From 4.00 pm Christmas Day until 6.00 pm Boxing Day in 2019 and each alternate year thereafter.
(f) From 10.00 am Christmas Eve until 4.00 pm Christmas Day in 2020 and in each alternate year thereafter.
(g) As may otherwise be agreed by the Husband and Wife in writing.
5.
The Husband’s time with the Children be suspended as follows:
(a) In the event that Mother’s Day falls on the Husband’s weekend, from 5.00 pm on the day preceding Mother’s Day until the commencement of school the Monday following Mother’s Day each year.
(b) From 10.00 am Christmas Eve until 4.00 pm Christmas Day in 2019 and in each alternate year thereafter.
(c) From 4.00 pm Christmas Day until 6.00 pm Boxing Day in 2020 and each alternate year thereafter.
6.
In the event that either parent proposes to have a block of two weeks with the Children during the long summer holidays, they shall provide the other parent with 30 days written notice and the other parent shall be entitled to a two week block period with the Children during the same holiday period.
7.
In the event the Children spend an extended school holiday period with the Husband in accordance with Orders 4(b) and (c) and Order 6, the Husband’s time with the Children pursuant to Order 4(a) is suspended during the relevant school holiday period and recommences at the commencement of the next school term as if the holiday period had not intervened.
8.
Save for changeovers that occur at the Children’s school, all changeovers occur at the Wife’s home.
Passports
9.
No later than seven months prior to the expiration of each of the Children’s Australian passports, the Husband and Wife shall sign all documents and do all acts and things required to facilitate the renewal of the passports and the Wife be permitted to retain the Children’s Australian passports.
10.
The Husband and Wife sign all documents and do all things required to apply for and renew British passports for the Children and the Wife be permitted to retain the Children’s British passports.
International Travel
11.
The Husband and the Wife be permitted to travel internationally (International Travel) with the Children:
(a)For up to four weeks each year provided that at least 60 days prior to the proposed travel they:
(i) Advise the other parent in writing; and
(ii) Provide to the other parent a comprehensive itinerary.
(b) At such other times as may be agreed in writing between the parties.
12.
In the event that the International Travel interferes with the other parent’s time with the Children, make up time be arranged with the non-travelling parent either before or after the travel dates.
Parents to provide information
13.
Each parent forthwith keep the other informed of any illness, injury or accident suffered by any of the Children requiring medical treatment, and provide the other parent with details of the child’s treatment and medical practitioner and authorise such medical professional to communicate with the other parent.
Restraints on the Parents
14.
Both parents be and are hereby restrained from:
(a) Discussing these proceedings with or in the presence or hearing of the Children or allowing any other person to do so.
(b) Denigrating the other parent or member of the parent’s family or household to or in the presence or hearing of the Children or allowing any other person to do so.
Property
Payment of Moneys
15.
The Husband pay to the Wife the sum of $377,832 (Payment) on or before 60 days from the date of these orders (Due Date).
16.
Contemporaneously with the Payment:
(a) The Wife do all acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situated at and known as Property A in the State of Victoria, being the whole of the land more particularly described in Certificate of Title volume … folio … (Property A Property).
(b) The Husband:
(i) Discharge mortgage registered number … to Westpac Banking Corporation (Mortgage);
(ii) Refinance into his sole name the Bank of Melbourne:
A) Residential loan … Account Number …; and
B) Portfolio loan BSB … Account Number …; and
(iii) Indemnify the Wife against all payments and liabilities pursuant to the Mortgage and all apportionable rates, taxes and outgoings with respect to the Property A Property of whatsoever nature and kind.
17.
In the event that the whole of the Payment has not been made by the Due Date, then the Husband sign all documents and do all things necessary to transfer to the Wife the Property A Property to be held on trust for sale and the Property A Property be forthwith sold altogether out of court (Sale) and upon completion of the Sale, the proceeds of the Sale be applied:
(a) First, to pay all costs, commissions and expenses of the trust, transfer and the Sale.
(b) Secondly, to discharge the Mortgage and any other encumbrance affecting the Property A Property.
(c) Thirdly, so much of the Payment as is then outstanding to the Wife together with interest thereon at the rate prescribed by the Family Law Rules 2004 (Cth) adjusted monthly from the Due Date.
(d) Fourthly, the balance to the Husband.
18.
Pending the Payment or completion of the Sale:
(a) The Husband have the sole right to occupy the Property A Property and during such right of occupation the Husband pay all instalments pursuant to the Mortgage and all rates and taxes and like apportionable outgoings of the Property A Property as they fall due.
(b) The parties hold their respective interests in the Property A property upon trust pursuant to these Orders.
(c) Neither party encumber the Property A Property without the consent in writing of the other party.
19.
Liberty be reserved to either party to apply with respect to the terms, conditions and execution of the Sale.
Superannuation
20.
Having been accorded procedural fairness in relation to the making of these Orders, Orders 20 to 24 of these Orders bind the Trustee of the Super Fund 1 Master Fund member number … (Fund).
21.
Orders 20 to 24 inclusive have effect from the operative date.
22.
The operative date is the fourth business day after the day of service of a certified copy of the final sealed and signed orders on the Trustee of the Fund.
23.
The Court allocate, pursuant to s.90XT(4) of the Family Law Act 1975 (Cth) (Act) a base amount of $196,622 to the Wife out of the Husband’s interest in the Fund.
24.
In accordance with s.90XT(1)(a) of the Act, whenever a splittable payment becomes payable to the Husband, from his interest in the Fund, the Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using a base amount of $196,622 and there be a corresponding reduction in the entitlement that the Husband would have had but for these Orders.
25.
Until the happening of any of the following:
(a) The establishment of a separate superannuation interest in the name of the Wife in the Fund; or
(b) The transfer or rolling over into another superannuation fund of the payment split created by Order 23 of these Orders (Payment Split); or
(c) The Husband satisfies a condition of release and the Wife is paid the Payment Split; or
(d) The Wife exercises a waiver of her rights within the meaning of s.90XZA of the Act in relation to the Payment Split,
the Husband be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any act or thing which would render any part of his interest in the Fund a “not splittable payment” within the meaning of reg.12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth).
Miscellaneous Property Matters
26.
Unless otherwise specified in these Orders, and save for the purpose of enforcing any monies due under these Orders:
(a) Each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders.
(b) Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) in the possession of such party as at the date of these Orders.
(c) Monies standing to the credit of the parties in any personal bank account as at the date of these Orders shall become the sole property of the party in whose name that account is held.
(d) All insurance policies remain the sole property of the named owner.
(e) Each party shall be solely responsible for the payment of any debt accrued in their respective name as at the date of these Orders.
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
(g) Save as provided herein, each party renounces any claims they may have to superannuation or employment benefits or insurance benefits belonging to or earned by the other.
27.
All extant applications are otherwise dismissed.
28.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
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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