FAMILY COURT OF AUSTRALIA
PASKIN & LAURENCE [2018] FamCA 554
FAMILY LAW – CHILDREN – Where there is one child aged six years – Where the father seeks an increase in his time with the child including overnight time – Where orders were previously made for overnight time to commence on a specified date – Where the mother does not dispute these orders but requests a more gradual approach to increasing overnight time – Where the father has been diagnosed with Asperger’s Disorder and has perpetrated family violence in the past – Where the father is receiving ongoing treatment and has shown insight into his condition – Where the expert considers that the father’s proposals for time will generally best meet the child’s needs – Where there are benefits to each of the parents having clear weekend time with the child – Where it is ordered for the child to spend alternate weekends and one night during the intervening week with the father.
FAMILY LAW – CHILDREN – Parental Responsibility – Where the father and the Independent Children’s Lawyer seek an order for equal shared parental responsibility and the mother seeks sole parental responsibility – Where the presumption for equal shared parental responsibility does not apply as the father has been responsible for family violence – Where the parents do not have a good relationship and their communication is poor – Where it would be in the child’s best interest for the father to have input into decisions – Where an order is made for the mother to have sole parental responsibility with orders for consultation with the father.
FAMILY LAW – RELOCATION – Where the mother seeks an order that she be able to relocate with the child for one period of up to three years – Where the father opposes this application – Where the expert recommends that the relocation should not take place for at least two years so that the child and the father can develop their relationship – Where the Court will not presume to speculate now about the circumstances of this family in late 2019 and beyond – Where no order allowing relocation is made.
FAMILY LAW – PROPERTY – Where the parties were married for approximately 10 years – Where the main assets of the relationship are moneys in a joint account, superannuation and the father’s share options in a US company – Where neither party sought for their paid legal fees to be added-back – Where the wife brought substantial funds into the marriage and the husband’s share options have increased post separation – Where contributions are assessed as 55 per cent by the father and 45 per cent by the mother – Where the mother has the primary care of the child – Where an adjustment of 7.5 per cent is appropriate in favour of the mother.
FAMILY LAW – PROPERTY – Share options – Where the father has share options in his employer, a US company – Where not all…
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- AGLC
- PASKIN & LAURENCE [2018] FamCA 554
- Case
- [2018] FamCA 554
- Decision Date
CaseChat Overview and Summary
The court was required to determine the most appropriate parenting arrangements for the child, balancing the father's desire for increased time with the child against his history of family violence and diagnosis of Asperger’s Disorder, and the mother's concerns regarding a gradual approach to overnight stays. It also had to decide on the allocation of parental responsibility, considering the presumption of equal shared responsibility and the impact of family violence. Furthermore, the court needed to assess the mother's relocation application and the division of the parties' property, including the complex issue of the father's unvested share options and superannuation interests.
Regarding parenting, the court ordered that the mother have sole parental responsibility but required her to consult with the father on significant decisions, ensuring good faith and child-focused communication. The father was granted alternate weekend time with the child, plus one overnight stay during the intervening week, commencing from Term 3, 2018, with further provisions for school holidays and specific public holidays. The court declined the mother's relocation application, accepting the expert's recommendation for a delay to allow the child and father to develop their relationship. In property matters, contributions were assessed at 55% to the father and 45% to the mother, with an adjustment of 7.5% in favour of the mother due to her primary care of the child. Specific orders were made for the division of joint bank accounts and the father's share options, requiring him to exercise vested options when "in the money" and provide 50% of the value to the mother, with the mother indemnifying the father for associated taxes and fees. A base amount of $56,716 was allocated to the mother from the father's superannuation interest in the F Superannuation Fund.
Orders
Orders of the court
Parenting
(1) The mother shall have sole parental responsibility for X born on … 2011 (“the child” or “the child”).
(2) Prior to exercising sole parental responsibility, the mother shall consult the father about the decision to be made in the exercise of parental responsibility as follows:
(a) by email/in writing with as much notice and relevant information as is available in respect of the decision to be made; and
(b) upon receipt of that information, the father shall provide a prompt response to facilitate the mother’s consideration of his input; and
(c) both parents shall ensure that all consultation between them in relation to parental responsibility for the child is conducted in good faith, is child focused and is not derogatory of the other parent.
(3) Unless otherwise provided in these Orders the child live with the mother.
(4) The child spend time with the father as follows:
(a) from the commencement of Term 3, 2018, each alternate weekend during school term from after school or 3.00 pm Friday until before school or 9.00 am Monday, and each Tuesday in the intervening week from after school or 3.00 pm until before school or 9.00 am Wednesday.
(b) from and including the school holidays at the end of Term 3, 2018, for half of each NSW School Holiday period as follows:
(i) in holidays commencing in odd numbered years, for the first half of all school holidays; and
(ii) in holidays commencing in even numbered years, for the second half of all school holidays.
(c) on Christmas Day in each even numbered year from 10.00 am until 6.00 pm.
(d) at Easter, provided it does not fall within the school holidays at the end of Term 1:
(i) in odd numbered years, from after school or 3.00 pm on Easter Thursday until 7.00 pm Easter Saturday; and
(ii) in even numbered years, from 7.00 pm Easter Saturday until 7.00 pm Easter Monday.
(e) on the father’s birthday, if the child is not already spending time with the father, from 9.00 am until 7.00 pm.
(f) on Father’s Day, if it is not a weekend the child would otherwise be spending time with the father, from 9.00 am Saturday on the Father’s Day weekend until 7.00 pm Sunday.
(g) on the child’s birthday provided that the father is not already spending time with the child, if it is a school day, from after school until 6.00 pm, and if it is not a school day, from 9.00 am until 3.00 pm.
(h) at any other times as agreed between the parties from time to time.
(5) The father’s time with the child in accordance with Order 4 above, be suspended:
(a) on Christmas Day in each odd numbered year from 10.00 am until 6.00 pm.
(b) at Easter, provided it does not fall within the school holidays at the end of Term 1:
(i) in even years, from after school or 3.00 pm on Easter Thursday until 7.00 pm Easter Saturday;
(ii) in odd years, from 7.00 pm Easter Saturday until 7.00 pm Easter Monday.
(c) on the mother’s birthday, if that day falls on a day when the child would otherwise be spending time with the father, from 9.00 am until 7.00 pm.
(d) on Mother’s Day, if that day falls on a day when the child would otherwise be spending time with the father, from 9.00 am Saturday of the Mother’s Day weekend, until 7.00 pm Sunday,
(e) on the child’s birthday, where the father is already spending time with the child, if it is a school day, from after school until 6.00 pm, and if it is not on a school day, from 9.00 am until 3.00 pm.
(6) That for the purpose of changeover in accordance with Orders 3, 4 and 5 above that does not occur at the child’s school, unless the parties otherwise agree in advance, the father is to collect the child from the mother’s residence at the commencement of his time and the mother is to collect the child from the father’s residence at the conclusion of that time.
(7) For the avoidance of doubt, each of the parents is permitted to attend events held by the child’s school from time to time, including but not limited to, assemblies, sports carnivals and award ceremonies.
Communication
(8) When the child is in the father’s care, the mother shall have electronic communication, including by telephone and/or Skype/video calls with the child at times and on days agreed between the parties, with the mother to provide the father with contact details and both parents are to facilitate that communication.
(9) When the child is in the mother’s care, the father have electronic communication, including by telephone and/or Skype/video calls with the child each Thursday and alternate Sunday when the child is not spending time with the father between 5.00 pm and 5.30 pm, with the father to provide the mother with contact details and both parents are to facilitate that communication.
(10) The father be permitted to communicate with the child’s medical practitioners and to receive reports from those medical practitioners with respect to medical treatment the child may receive from time to time.
Notifications
(11) The mother notify the father of all extracurricular activities the child is enrolled in and, for the avoidance of doubt, each of the parents is permitted to attend those activities from time to time.
(12) Each party shall notify the other as soon as practicable, of any emergency, serious medical incident and/or illness relating to the child while in the party’s care, including providing the other party sufficient details to enable both parties to be consulted and advised with respect to such illness and/or condition and any treatments recommended or provided.
(13) Each party shall notify the other within 48 hours of any change to their address and/or landline and/or mobile number and/or email address.
(14) Each party shall notify the other of the address and telephone number (if there is a landline) of the place/s where the child will be staying during the holiday periods spent away from their residence not later than 24 hours prior to the commencement of any such holiday period.
(15) The following orders be made in relation to travel:
(a) pursuant to subsection 65Y(2) of the Act, each party is only permitted to take the child outside of Australia when the child is living with that parent pursuant to these Orders and provided the travelling parent provides to the other parent not less than 28 days’ notice of their intention to travel overseas, and 14 days prior to the departure overseas provides to the other parent:
(i) a copy of the travel itinerary for the child; and
(ii) particulars of where the child will be staying during that travel, including address and contact telephone numbers.
(b) that the parties shall from time to time give all consents and sign all documents and the mother shall pay any fee to ensure that the child has a current and valid passport.
Father’s Individual Therapy
(16) The father shall continue in therapy with Mr B or his delegate at a frequency recommended by that therapist, at least until the child reaches the age of 13 years.
(17) The father shall give his consent for Mr B to communicate with the mother to confirm the father’s attendance at therapy, without the provision of other details.
(18) The father shall give his consent for Mr B to communicate with the Family Therapist appointed pursuant to Order 19.
Family Therapy
(19) The father shall continue to attend upon Ms C or any other therapist she recommends for the purpose of providing parenting advice and family therapy (“Family Therapist”) both on his own and with the child and at a frequency recommended by Ms C until the child reaches 13 years of age.
(20) Both parties shall follow all reasonable directions of the Family Therapist.
(21) The father shall give his consent for the Family Therapist to communicate with the mother to confirm the father’s attendance for family therapy, without the provision of other details.
(22) The father shall give his consent for the Family Therapist to communicate with Mr B or his delegate, the father’s therapist.
Physical Discipline
(23) Each of the parents is restrained from striking the child.
Mediation
(24) In the event that the parties disagree about issues arising from parental responsibility for the long term and going to the welfare of the child, where practicable, the parties shall:
(a) do all things and acts necessary to seek assistance from a family mediator;
(b) complete forthwith all forms and intake forms necessary to undertake family mediation; and
(c) attend at a time nominated by the family mediator.
(25) Pursuant to s 62B and subsection 65DA(2) of the Act, the particulars of the obligations these parenting orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Property
(26) Within 28 days of the date of these Orders, each party shall do all things necessary to cause the following:
(a) the moneys held in D Bank - BSB ... account numbers ...39, ...66 and ...02 (“the accounts”), to be divided between the parties in the following shares 51 per cent to the mother and the remaining balance to the father; and
(b) the closure of the accounts.
(27) As between the father and mother, and subject to the above orders, the father and mother shall each respectively retain all interest in and entitlement to:
(a) all personal property now in his/her respective possession or control;
(b) all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively; and
(c) all interests in life insurance policies and, subject to the splitting order made below, the superannuation funds standing in his/her sole name respectively.
E Inc. Options
(28) The Court notes the following definitions for the purpose of the following orders:
(a) The father’s share options or his share options means the Stock Options Grant offered to the father by his employer, E Inc. contained in the offer dated 13 April 2016 (originally 11 September 2013), with vesting start date 29 July 2013, and fully vested date 29 July 2017.
(b) Grant date means the day on which the options are awarded by E Inc. to the father.
(c) Exercise price means the amount payable by the employee to acquire the underlying security, being shares, over which the option is granted.
(d) Vesting date means the date on which the employee can exercise the option and acquire the underlying shares.
(e) Expiry date means the date on which the right to exercise the options and acquire the shares ceases.
(f) Profit means the difference between the exercise price and the market price of the shares and to be ‘in the money’ means the current share market price of the share is higher than the exercise price.
(g) Fair market price means the current value of the shares as determined by the E Inc. Board, or if shares in E Inc. are trading on a public stock exchange (such as NASDAQ), then the price as reported by that stock exchange.
(h) Escrow period means any period during which the shares acquired under the scheme must be held by the employee prior to being transferred.
(29) Within 14 days of the vesting date, the father do all acts and things and sign all documents necessary to exercise his share options (if he has not already done so), including but not limited to executing any form of notice required provided that the shares are in the money.
(30) Within seven days of the father exercising his share options pursuant to Order 29, he provide written notice to the mother notifying her that he has exercised the options and he shall provide to her copies of all such correspondence.
(31) Within 14 days of the escrow period expiring, the father transfer 50 per cent of his shares obtained from the options exercised pursuant to Order 29 to the mother and provide the mother with a copy of his payment receipt and/or invoice and within a further 14 days thereafter the mother shall pay to the father the exercise price in respect of the shares transferred to her.
(32) In the event that the father is unable to transfer the shares obtained from the options exercised pursuant to Order 29 to the mother, then the father shall pay to the mother and amount of $X, representing 50 per cent of the profit on the shares obtained from the options exercised pursuant to Order 29, to be calculated in accordance with the following formula:
$X = [(exercise price – share market price) / 2]
(33) In the event that the share options are exercised pursuant to Order 29, or transferred to the mother pursuant to Order 31 or profits are paid to the mother pursuant to Order 32, the mother indemnifies the father for any brokerage fees, bank transfer fees or other similar fees, income tax, withholding tax, capital gains tax, stamp duty or other similar tax as a consequence of the operation of those orders. Furthermore upon presentation of evidence of any such tax, duty or fee which is payable by him, the mother must within 14 days remit the required sum to the father or as he directs.
(34) Within seven days of receipt from his employer, the father shall provide to the mother copies of all letters, notes, records, transaction histories, correspondence, communications and any other document received by him from his employer in relation to his share options, subject to any obligations of confidentiality he may have with respect to documents, unless they have already been exercised or forfeited pursuant to Order 29 or any profits have been paid to the mother pursuant to Order 32.
(35) The father answer all requests for information made by the mother in relation to his share options in writing within seven days of the request for information being made, subject to any obligations of confidentiality he may have with respect to such information, unless they have already been exercised or forfeited pursuant to Order 29 or any profits have been paid to the mother pursuant to Order 32.
(36) In the event of any event occurring which would disentitle the father to receiving some or all of his employee share options, he shall notify the mother in writing within 14 days and provide any and all correspondence relevant to that event unless they have already been exercised or forfeited pursuant to Order 29 or any profits have been paid to the mother pursuant to Order 32.
(37) And it is noted that in the event that the share options are not to “in the money” by the expiry date, then the father shall not seek to exercise the options and any rights of the mother pursuant to these Orders are thereupon extinguished.
Superannuation
(38) In accordance with subsection 90MT(4) of the Act, a base amount of $56,716 is allocated to the mother out of father’s interest in the F Superannuation Fund.
(39) In accordance with subsection 90MT(1)(a) of the Act:
(a) the mother is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b) the entitlement of the father in the F Superannuation Fund is correspondingly reduced by force of this order.
(40) The trustee of the F Superannuation Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a) calculate, in accordance with the requirements of the Act the entitlement awarded to the mother in the immediately preceding clause of this Order; and
(b) pay the entitlement whenever the trustee makes a splittable payment from the father’s interest in the F Superannuation Fund.
(41) This Order has effect from the operative time and the operative time is the fourth business day following the date of service of these Orders on the trustee.
(42) After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”), the mother shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the mother’s request in accordance with the SIS Regulations, for the rollover or transfer of the non‐member spouse interest to a complying superannuation fund of the mother’s choosing in accordance with the SIS Regulations.
(43) The Court notes:
(a) the value of the non‐member spouse’s interest is calculated in accordance with the SIS Regulations; and
(b) any payments from the father’s superannuation interest in the F Superannuation Fund made after the trustee has created a new interest in the mother’s name in the F Superannuation Fund are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001 (Cth).
(44) That each party shall do all things necessary including providing all consents to give effect to these Orders in the time periods prescribed in these orders.
(45) That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
(46) Leave is granted to the parties to apply within 21 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these 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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