FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Otmar & Mack [2024] FedCFamC2F 37
File number(s): MLC 2416 of 2021 Judgment of: JUDGE O’SHANNESSY Date of judgment: 23 January 2024 Catchwords: FAMILY LAW – final parenting orders – final property orders – where unintended consequence of mandatory provisions of section 102NA family violence cross examination scheme contributed to delay of long awaited final hearing – where both parties seek sole parental responsibility – where one parent seeks teenager live with him and have no contact with other parent – where other parent seeks teenager live with her and have limited time with other parent – one parent spends no time with teenager and alleges other parent has alienated teenager from her – expert evidence regards teenager as mature – where teenager shows no empathy for one parent – where court not satisfied teenager mature– family therapy attempted twice – where parent not seeing child has had past episodes of poor mental – where teenager has given vague and contradictory reasons to reject one parent – consequences for teenager to force time with a parent – whether alleged perpetrator of assault was the victim – one parent assaulted by other but the assaulted parent removed from home by police and charged with assault – where charges withdrawn after recording provided much later – weight to be given to many years of different contributions – whether one parent suffered mental health issues – whether one parent pre-occupied with perceived danger of a politician and whether that indicates mental health relapse – Alcohol and illicit drug consumption – much greater consumption by one parent – whether restriction on drug and alcohol consumption should be imposed on resident parent – weight to be given to significant inheritance – weight to be given to section 90SM factors-common ground former relationship home to be sold – final orders made for teenager to spend time with one parent as she wishes and to live with parent with high alcohol consumption – restraint on alcohol consumption. Legislation: Evidence Act 1995 (Cth) ss 59, 128, 140
Family Law Act 1975 (Cth) ss 4AB, 11F, 60B, 60CA, 60CC, 60CF, 60CG, 61DA, 65AC, 69ZT, 90SF(3)(c), 90SM(4)(e), 90SL, 90SS, 102NA
Family Violence Protection Act 2008 (Vic)I
Cases cited: Clauson & Clauson (1995) FLC 92-595
Fox v Percy (2003) 214 CLR 118
Gartrell & Deakin (2019) 67 Fam LR 23
Hickey and Hickey and the Attorney-General [2003] FamCA 395
Hobson v Hobson (2020) 61 Fam LR 557
Kennon v Kennon [1997] FamCA 27
Keskin & Keskin and Anor [2019] FamCAFC 236
Lovine & Connor and Anor [2012] FamCAFC 168
Mallet v Mallet (1984) 156 CLR 605
Parshen & Parshen (1996) FLC 92-720
Rosati v Rosati (1998) FLC 92-804
Stanford v Stanford [2012] HCA 52
Varnham & Moses (2021) FLC 94-007
Wallis & Manning (2017) FLC 93-759
Wayne & Wayne [2010] FamCAFC 33
Division: Division 2 Family Law Number of paragraphs: 330 Date of hearing: 6, 7, 8, 9 & 10 March,…
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- Otmar & Mack [2024] FedCFamC2F 37
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- [2024] FedCFamC2F 37
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CaseChat Overview and Summary
The court found that while X demonstrated maturity, the court could not be satisfied that X was mature enough to make independent decisions about living arrangements and contact with both parents. Given the contentious nature of the dispute and the history of family violence, the court was reluctant to impose a rigid parenting arrangement that would force X into a contact situation that could be detrimental. Instead, the court opted for a flexible arrangement that would respect X's wishes while also ensuring both parents remained involved in X's life. The court also considered the significant consumption of alcohol by Mr Mack and ordered restrictions on his alcohol consumption when he had X in his care.
In terms of property division, the court considered the contributions of both parents, including their financial contributions, and ordered the sale of the former matrimonial home. The court also addressed the winding up of family companies and trusts, the division of assets such as motor vehicles and superannuation, and made specific orders to manage the transfer of assets and financial responsibilities.
The court ultimately ordered that Mr Mack would have sole parental responsibility for X, with specific provisions for X to live with Mr Mack but have contact with Ms Otmar based on X's wishes. The court also imposed conditions on Mr Mack's alcohol consumption and directed the sale of the former matrimonial home and the winding up of the family companies and trusts. The final orders included detailed provisions for communication between the parents and child, as well as specific directions for the management and division of the couple's assets.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. All previous parenting orders be, and are, discharged.
PARENTING
2. The Father, Mr Mack (‘the Father’) have sole parental responsibility for the child X born in 2007 (‘X’) provided that, save in emergency, before he makes any major long term decision about the care, welfare and development of X (‘the decision’) the Father;
(a) inform the Mother, Ms Otmar (‘Mother”), of all details of the decision he proposes, in a timely manner by text message or email; and
(b) in the event the Mother responds in a timely manner, consider her response, and;
(c) inform the Mother in a timely manner, by text or email, of the decision.
3. X live with the Father.
4. X spend time and communicate with the Mother in accordance with X’s wishes and for that purpose the Mother keep the Father informed of a mobile phone number and email address suitable to her for communication with X, and the Father do all acts and things necessary to ensure X is kept aware of the mobile phone number and email address provided by the Mother for that purpose.
5. That on the occasions of X’s birthday, Mother’s day and Christmas Day and in addition, on other occasions as the Mother chooses, but not more frequently than once each school holiday, the Mother be and is permitted to send X a short letter by text message or email and for that purpose the Father keep the Mother informed of X’s mobile phone number and X’s email address as are suitable for the Mother’s communication with X, and the Father do all acts and things necessary to ensure the Mother is kept aware of X’s mobile phone number and X’s email address for this purpose.
6. Each parent do all acts and things to cause and ensure that both parents are authorised to obtain, from any school X may attend, copies of all school reports, school newsletters and school photographs and any other documents that parents are normally provided with, and the provision of these Orders shall act as an authority for same.
7. When X is in the Father’s care or living with him or in his company the Father be and is restrained from consuming any alcohol or illicit drug, including beer and/or illicit substance, at all, and for the avoidance of doubt, that means none at all.
8. Each of the parents, their servants or agents, be and are restrained from denigrating the other parent to or in the presence or hearing of X or allowing any other person to do so;
9. Each parent inform the other, in a timely manner, in the event that X suffers a serious illness or serious injury or serious medical condition.
10. For the purposes of these orders, X’s parents communicate, only in temperate terms, by text message or email and each keep the other informed of a mobile phone number and email address available for that purpose.
11. The Independent Children’s Lawyer (‘the ICL’), explain, in such manner as the ICL sees as appropriate, these orders and such aspects of the reasons for this decision as appropriate, taking into account X’s current circumstances, and following such explanation, is discharged.
12. All extant parenting applications are otherwise dismissed.
FINAL PROPERTY ALTERATION ORDERS
Former matrimonial home
13. The Mother and the Father do all acts and things to cause and ensure the real property located at B Street, Suburb C (‘the FRH’) be advertised on the market for sale by private treaty to be sold as soon as practicable but not later than 90 days from the date of these Orders and the proceeds of the sale be disbursed as follows:
(a) First, to pay all the costs and commissions and expenses of the sale, including legal fees and conveyancing fees;
(b) Second, to discharge the mortgage secured against the FMH and any other encumbrance affecting the FMH; and
(c) Third, the fees of Ms M, for appearing at the final hearing be paid, and in the event either party has already paid those fees or part thereof, that party be reimbursed such proportion, either 58% or 42% as the case maybe, to the same effect as if those fees were being paid from the proceeds of sale.
(d) Fourth, the balance to be split as follows:
(i) 42 % to the Mother; and
(ii) 58 % to the Father; and
(iii) on account of Motor Vehicle 1 and Motor Vehicle 2 to be retained by the Mother, from the Mother’s 42% there be paid to the Father the sum of $8,700 (58% of the Motor Vehicle 1 and Motor Vehicle 2 valued together at $15,000); and
14. If the FRH fails to be sold by private treaty within 90 days of the date of these orders, then the parents take all necessary steps and execute all necessary documents to cause the former matrimonial home to be sold by public auction at the earliest practical date and the proceeds of sale be distributed in the same manner as provided in the previous order.
15. For the purpose of the sale of the FRH:
(a) Within 14 days the parties jointly appoint an independent conveyancer or solicitor to act as the conveyancer; and
(b) Within 14 days the parties jointly appoint a real estate agent (‘the agent’) and failing agreement as to the agent the parties or either of them request the President of Real Estate Institute of Victoria (“REIV”), or his nominee, to nominate a suitable agent for the purpose of the sale of the former matrimonial home;
(c) The reserve price be set at $920,000 unless otherwise agreed between the parties in writing;
16. Pending the sale and settlement of the FRP:
(a) The Father have the sole right to occupy the FRP and during such right of occupation the Respondent shall be liable for and pay for all rates and taxes and like apportionable outgoings of the property as and when they fall due;
(b) For the purpose of the sale the Father take all steps necessary to maintain and present the FRP at the standard advised by the agent in writing.
(c) The parties hold their respective interests in the former matrimonial home upon Trust pursuant to these Orders;
(d) The parties be and are hereby restrained from encumbering the former matrimonial home without consent in writing from the other party; and
(e) The parties take all necessary steps to prevent the building permit issued in respect of the former matrimonial home from lapsing prior to the sale at their equal shared expense.
(f) Unless advised to the contrary by the agent the remaining renovation items including the tapware, bath, toilets, vanity, shower should be neatly left in the FRH for the purpose of enhancing the prospects of sale.
(g) Any insurance fees arising out of the building permit issues to be shared in the proportions of 58% by the Father and 42% by the Mother.
Timber flooring
17. Subject to the advice of the agent, the parties endeavour to sell the timber flooring, stored at D Store (‘the timber flooring’), together with the FRH, and the parties follow the advice of the agent in this regard.
18. If the timber flooring is not sold with the Family Home, the parties take all necessary steps and execute all necessary documents to sell the timber flooring for the best price available, with a reserve price as agreed, and in default of agreement, a reserve price of approximately $10,500.00 unless otherwise agreed between the parties in writing, and the sale proceeds be distributed between the parties in the proportions of 58% to the Father and 42% to the Mother with the Father to have the conduct of the timber flooring but provided the Mother is informed of the proposed sale prices, sale conditions and identity of the purchaser before any sale.
E Company Fund
19. Within 14 days of the date of these Orders, the parties take all necessary steps and execute all necessary documents to cause the removal of the Mother’s name from the parties joint membership number … with F Company (formerly E Company Fund) in respect of both and/or either of the parties children without causing a surrender payment to be made.
Winding up the companies and the trust
20. The parties do all acts and things to wind up and/or deregister (‘the winding up’) the Trust or settlement known as G Family Trust and the Companies, H Pty Ltd and J Pty Ltd, (collectively referred to as ‘the Companies and the Trust’), including the retention of a suitable accountant as agreed (‘the accountant’) to undertake the winding up.
21. For the purpose of the winding up;
(a) The parties jointly retain a suitable accountant; and
(b) The parties do all acts and things, and if required the amendment or rectification of accounts, to cause the debts of the parties or either of them to the Companies and Trust to be recorded and/or treated as due from them to the effect that, in the event of a surplus after such amendment or rectification and the winding up, then such surplus be divided between the parties in the proportions of 85% to the Father and 42% to the Mother, and to the effect that in the event of a deficiency after such amendment or rectification and the winding up, then the parties contribute to such deficiency in the proportions of 58% by the Father and 42% by the Mother.
22. For the purpose of the winding up the parties do all acts and things necessary to sell:
(a) the Motor Vehicle 3; and
(b) the Motor Vehicle 4; and
(c) the Motor Vehicle 5;
and apply the entire proceeds towards the winding up with the Mother to have the conduct of those sales but provided the Father is informed of the proposed sale prices, sale conditions and identity of the purchaser before any sale.
Superannuation Splitting Orders
23. These superannuation splitting Orders are binding upon K Pty Ltd (“Trustee”) as the Trustee of Super Fund 1 (“Fund”) of which the Respondent Father is a member.
24. The base amount to be allocated to the Applicant Mother out of the total interest of the Respondent Father in the Fund is $13,857 (“Base Amount”).
25. Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whereby the Trustee of the Fund makes a splitable payment from the interest held by the Respondent Father in the Fund, the Trustee shall:
(a) Pay to the Applicant Wife the Base Amount referred to in the preceding Order, which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b) Make the corresponding reduction in entitlement which the Respondent Father would have had in the Fund but for the provision of these Orders.
(c) These superannuation splitting Orders have effect from the operative time and the operative time is seven days after service of a sealed copy of these Orders on the Trustee.
26. Until the happening of any of:
(a) The establishment of a separate account in the name of the Applicant Mother in the Fund; or
(b) The transfer or "rolling over" into another superannuation fund of the payments created by these Orders;
(c) The Applicant Mother satisfying a condition of release of being paid the payment split which was created by these Orders; or
(d) The Applicant Mother executing a waiver of right within the meaning of section 90XZA of the Family Law Act 1975 in relation to payments created by these Orders –
the Respondent Father 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 "non-splittable payment" within the meaning of regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the Trustee of the fund shall give effect to these Orders.
Ancillary orders
27. The Applicant Mother retain to the exclusion of the Respondent Father:
(a) Motor Vehicle 1 and Motor Vehicle 2, and the Father execute any necessary document to facilitate the transfer of the registration of Motor Vehicle 2 to the Mother at her expense, if any.
(b) Any funds standing to her credit in bank accounts in her personal name.
28. Save as provided in these orders, the Respondent Father retain to the exclusion of the Applicant Mother:
(a) Any funds standing to his credit in bank accounts in his personal name;
(b) the membership number … with F Company (formerly known as E Company Fund);
(c) The household items and furniture situated in the FRH.
29. Failing agreement within 14 days of these orders as to who the accountant and/or the conveyancer will be the parties do all things necessary to request the President of the respective professional association of the accountant and/or the conveyancer, as the case maybe, to nominate a suitable person to carry out the work and the parties retain the person nominated as soon as practical.
30. Unless otherwise specified by these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these Orders and the contents, household items and furniture situated in the FRH are deemed to be in the possession of the Father;
(b) Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c) The parties shall do all such acts and things and sign all necessary documents to close bank accounts in their joint names and any funds standing to the credit of the parties in those accounts shall be distributed to the parties equally;
(d) Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders;
(e) All insurance policies are to become the sole property of the owner as named;
(f) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(g) Any joint tenancy of the Applicant Mother and Respondent Father in any real or personal estate is expressly severed.
31. The parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to these Orders.
32. There be liberty to apply to Judge O’Shannessy as to any difficulty implementing these Orders.
33. All extant property applications are otherwise dismissed.
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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