FEDERAL CIRCUIT COURT OF AUSTRALIA
| PASCOE & PASCOE | [2016] FCCA 1401 |
| Catchwords: FAMILY LAW – Child Maintenance – husband resides in (country omitted) – duty of parents to maintain children – published research in relation to costs of children. FAMILY LAW – Children – whether children should be permitted to travel to (country omitted) – Hague Convention not applicable. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 66C, 66J, 66K, 75, 79, 90MZD Evidence Act 1995, s.140 |
| Cases cited: Beck & Sliwka (1992) FLC 92-296 |
| Applicant: | MS PASCOE |
| Respondent: | MR PASCOE |
| File Number: | LNC 207 of 2012 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 2 & 3 February 2016 |
| Date of Last Submission: | 3 February 2016 |
| Delivered at: | Launceston |
| Delivered on: | 16 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Higgins |
| Solicitors for the Applicant: | Bishops |
| Counsel for the Respondent: | Ms A Higgs |
| Solicitors for the Respondent: | Dobson Mitchell & Allport |
ORDERS
Property orders
That within 60 days of today MR PASCOE (“the husband”) must pay the sum of twenty thousand dollars ($20,000) to MS PASCOE (“the wife”).
That the parties’ interest in timeshare accommodation at the (omitted) in (country omitted) (“the timeshare”) be sold and all net proceeds after payment of any reasonable costs associated with the sale are to be paid to the wife.
That the timeshare be sold in such manner and upon such terms as the wife may decide and for such purpose the husband must comply with any reasonable request by the wife in relation to the sale.
That the husband and the wife do all things and execute all such documents as may…
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- PASCOE & PASCOE [2016] FCCA 1401
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- [2016] FCCA 1401
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CaseChat Overview and Summary
The legal issues before the court included the division of the parties' property, specifically how to account for assets held overseas and the inclusion of notional property in the asset pool. The court was also required to determine appropriate child maintenance payments, given the husband's residence overseas and the costs associated with raising children. Furthermore, the court had to consider whether the children should be permitted to travel overseas and whether the Hague Convention was applicable to such travel.
The court reasoned that while it lacked jurisdiction over funds held overseas, it could still make orders regarding the parties' interests in those assets, particularly the timeshare accommodation, which was to be sold with proceeds paid to the wife. The court also ordered the husband to pay a sum of $20,000 to the wife and to transfer 100% of his superannuation interest to her. Child maintenance was set at $200 per week per child, with annual indexation based on the Consumer Price Index for Hobart. In relation to parenting, the court ordered equal shared parental responsibility, with the children to live with the wife and the husband to have specific periods of time with them in Australia, subject to notice and communication provisions. The husband was also restrained from removing the children from Australia without consent or a court order.
Orders
Orders of the court
Property orders
1.
That within 60 days of today MR PASCOE (“the husband”) must pay the sum of twenty thousand dollars ($20,000) to MS PASCOE (“the wife”).
2.
That the parties’ interest in timeshare accommodation at the (omitted) in (country omitted) (“the timeshare”) be sold and all net proceeds after payment of any reasonable costs associated with the sale are to be paid to the wife.
3.
That the timeshare be sold in such manner and upon such terms as the wife may decide and for such purpose the husband must comply with any reasonable request by the wife in relation to the sale.
4.
That the husband and the wife do all things and execute all such documents as may be reasonably necessary to ensure that the timeshare is sold in accordance with these Orders.
5.
That notwithstanding the provisions of Orders No. 3 and 4 hereof, the wife has liberty to apply in relation to the administration of the sale of the timeshare.
6.
That whenever a splittable payment is payable in respect of any superannuation interest of MR PASCOE (“the husband”) held with the (omitted) Superannuation Fund in Tasmania (“(omitted)” Fund), Member number (omitted) (“the superannuation account”):
(a) MS PASCOE (“the wife”) is entitled to be paid the amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 by reference to a figure of one hundred per cent (100%); and
(b) there is a corresponding reduction in the entitlement of the husband as a consequence of this Order.
7.
That the Court notes the correspondence between the wife’s solicitors and the trustee of the husband’s superannuation account (“the Trustee”) on 25 January, 19 February and 25 February 2016 AND THE COURT DECLARES that the Trustee has been accorded procedural fairness in relation to the making of the order in accordance with subsection 90MZD(1) of the Family Law Act 1975.
8.
That these Orders bind the Trustee.
9.
That the wife’s solicitors serve a sealed copy of these Orders upon the Trustee within twenty eight (28) days of the date hereof.
10.
That for the purpose of these Orders the operative time shall be four business days from service of these Orders upon the Trustee.
11.
That until the Trustee has effected the splittable payment in favour of the wife pursuant to these Orders the husband, his personal representatives and any person or persons acting on his or their behalf be and are hereby restrained from disposing of all or any amount payable to the husband and/or his personal representatives, received by or held in trust, or for the benefit of him or them.
12.
That the parties and the Trustee each have liberty to apply in relation to the administration of these Orders
Child maintenance orders
13.
That MR PASCOE (“the husband”) must pay to MS PASCOE (“the wife”) the sum of two hundred dollars ($200) per week per child for X born (omitted) 1999, Y born (omitted) 2001 and Z born (omitted) 2008 (being a total of $2,600 per month).
14.
That such maintenance is to be paid monthly on the first day of each calendar month into a bank account to be nominated by the wife and the first monthly payment of $2,600 is due and payable on 1 July 2016.
15.
That the maintenance to be paid pursuant to Orders No. 13 and 14 hereof be varied on 1 January in each year (“the review date”) commencing on 1 January 2017 to such sum as shall be determined by multiplying the maintenance being paid on the review date by the fraction N/B where “B” is the Consumer Price Index for Hobart (All Groups) published by the Australian Bureau of Statistics (“the CPI”) in respect of the quarter year ended on the day 12 months prior to the review date, namely 31 December; and “N” is the CPI in respect of the quarter year ending on the day immediately preceding the review date.
Parenting orders
16.
That subject to Order No. 17 hereof the husband and the wife (“the parties”) have equal shared parental responsibility for X born (omitted) 1999, Y born (omitted) 2001 and Z born (omitted) 2008 (“the children”).
17.
That the wife have sole parental responsibility for the children in relation to medical emergencies which may occur when the children are in her care and the wife must notify the husband of any such emergency within 24 hours of it occurring.
18.
That the parent with whom the children are living at the relevant time will have responsibility for making day to day decisions concerning the children without reference to the other parent.
19.
That the children live with the wife.
20.
That the husband be and is hereby restrained from removing any of the children from Australia without first obtaining the written consent of the wife or an Order to that effect from a Court of competent jurisdiction.
21.
That the husband spend time with the children in Australia for two 14 day block periods each year and one 21 day block period each alternate year when the children’s school holidays coincide with the husband’s holidays.
22.
That the husband’s 21 day block period referred to in Order No. 21 hereof occur in the summer school holidays in 2016 and each alternate year thereafter with such to commence prior to 24 December on a date to be agreed between the parties but failing agreement on 23 December.
23.
That the husband spend time with the children at Easter in 2018 and each alternate year thereafter as follows:
(a) In the event that the husband’s school holidays coincide with the children’s school holidays, the husband’s Easter time with the children will be included in one of the 14 day block periods referred to in Order No. 21 hereof; and
(b) In the event that the husband cannot exercise the full 14 day block period referred to in Order No. 21 hereof, the husband is to spend time with the children from 5.00 pm on Easter Thursday until 5.00 pm on Easter Monday with this time to be in addition to the 14 day block periods referred to in Order No. 19 hereof.
24.
That the husband must provide the wife with at least 28 days’ notice in writing of his intention to exercise his time with the children in accordance with these Orders.
25.
That in addition to the block periods referred to in Order No. 21 hereof, the husband spend time with the children on weekends if he is visiting Australia at times to be agreed between the husband and the wife but failing agreement from Friday at 4.00 pm until Sunday at 4.00 pm each weekend during his visit but if the husband is in Australia for more than one month, the time he spends with the children shall be fortnightly from Friday at 4.00 pm until Sunday at 4.00 pm.
26.
That in the event that the husband is taking the children interstate during the block periods referred to in Order No. 21 hereof, the husband must provide in advance to the wife copies of flight itineraries, tickets and contact details for any accommodation where the children will be staying.
27.
That unless otherwise agreed between the parties, handovers of the children from the care of one parent to the other are to occur at the children’s schools when that is appropriate or at the mother’s home when it is not appropriate.
28.
That the husband communicate with the children:
(a) via Skype each Sunday between 5.00 pm and 7.00 pm Tasmanian Time and at other times to be agreed between the parties;
(b) via their mobile telephones at reasonable times; and
(c) via telephone calls to the wife’s home telephone or the wife’s mobile telephone at days and times to be agreed between the parties or failing agreement, every three days between 5.00 pm and 7.00 pm Tasmanian Time.
29.
That when the children are spending time with the husband, the wife is to be able to communicate with the children at least as frequently as provided for in Order No. 25 hereof:
(a) by use of the husband’s mobile phone and the husband must facilitate communication between the children and in particular if the children request to communicate with the wife;
(b) by using a free chatting application on the children’s iPods or via text message on the children’s mobile phones at the children’s discretion; and
(c) via Skype in the event that the husband and the children are interstate.
30.
That the parties each be and are restrained from denigrating the other in the presence or within the hearing of the children.
31.
That the parties each be and are restrained from denigrating the other during communication with that other party.
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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