FAMILY COURT OF AUSTRALIA
| PEAT & NORTHUP (NO. 2) | [2020] FamCA 1123 |
| FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child – Where both parties seek that the children live with the wife – Where the husband seeks a gradual build up in time with the children to five nights per fortnight – Where the wife seeks that the children spend limited time with the husband – Where the relationship between the husband and the children is fractured – Where the children have been and continue to be reluctant to spend time with the husband – Where only one child currently spends time with the husband on a limited basis – Where there are allegations of family violence – Where the wife considers that to force the children to spend time with the husband may result in psychological harm – Where the wife is not invested in promoting the children’s relationship with the husband – Where the Family Consultant considered the relationship between the husband and the children needs to be supported – Where the evidence does not support a finding that the husband presents as a risk to the children – Where there is a benefit to the children maintaining a relationship with the husband – Orders. FAMILY LAW – CHILDREN – Parental responsibility – Where the husband seeks equal shared parental responsibility and the wife seeks sole parental responsibility – Where there is a lack of communication between the parties – Where the parties are mistrustful of each other – Best interests of the child – Orders. FAMILY LAW - PROPERTY SETTLEMENT – Just and equitable – Contributions – Add backs - Future needs – Where the parties held minimal assets at the commencement of cohabitation – Where the husband seeks a 65 per cent split of the non-superannuation pool in his favour – Where the wife seeks an equal division of the net asset pool – Where the parties agree to equalise their superannuation entitlements – Where the parties are in dispute about add backs – Where the husband made the greater financial contribution – Where the wife made significant non-financial contributions – Where the wife has retained the primary care of the children following separation – Consideration of an inheritance received by the husband post-separation – Consideration of the treatment of partial property settlement sums – Where both parties are currently employed – Where the husband’s income is substantially higher than that of the wife – Where the wife will retain the primary care of the children - Where it is just and equitable for orders pursuant to s 79 of the Family Law Act 1975 (Cth) to be made – Orders. FAMILY LAW – PROPERTY SETTLEMENT – Trusts – Where the husband’s late father’s estate is held on trust - Where the wife seeks to include distributions to the husband from the trust in the property pool – Where the wife seeks to include… |
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- AGLC
- Peat and Northup (No 2) [2020] FamCA 1123
- Case
- [2020] FamCA 1123
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children in relation to their living arrangements and the extent of time they should spend with each parent, as well as the nature of parental responsibility. Specifically, the court had to assess the fractured relationship between the husband and children, the children's reluctance, and the Family Consultant's view that the relationship needed support, while also considering the husband's lack of risk to the children and the benefit of maintaining a relationship. Furthermore, the court had to decide on the division of the parties' property pool, including the husband's inheritance and the treatment of partial property settlement sums, and whether to include the husband's interest in his late father's trust in the property settlement.
Berman J applied the principles of the *Family Law Act 1975* (Cth) regarding the best interests of the child, noting that while the wife did not actively promote the children's relationship with the husband, there was a benefit to the children maintaining a relationship with him, and the evidence did not support a finding that the husband posed a risk. The court ordered shared parental responsibility, with the wife having final determination on health and education matters in the absence of agreement, and that the children live with the wife. A phased approach to the children spending time with the husband was ordered, commencing with limited contact and gradually increasing over time, with the children's wishes to be considered upon reaching fourteen years of age. Regarding property, the court found it just and equitable to make orders pursuant to s 79 of the Act, considering the parties' contributions, future needs, and the wife's primary care of the children. The court determined that distributions from the husband's late father's trust were not to be included in the property pool, as the husband did not control the trust and there was no evidence he would act contrary to his father's testamentary intentions. The court ordered a specific distribution of funds from the sale of a property, with the husband retaining certain assets and the wife retaining others, and also made orders for the division of superannuation entitlements.
Orders
Orders of the court
1.
That the parties have shared parental responsibility for X born … 2007 (“X”) and Y born … 2010 (“Y”) (collectively “the children”).
2.
That the wife have sole parental responsibility for matters affecting the health and education of the children PROVIDED that the parties shall use their best endeavours to reach a consensus and agreement as to major issues affecting the children’s health and education but in the absence of agreement the wife shall have the final determination.
3.
That the children live with the wife.
4.
That the children spend time with the husband as follows:-
(a) For a period of three (3) months each Monday (or such other day as the parties may agree) from the conclusion of school (or 4.00 pm if not a school day) until 8.00 pm;
(b) Thereafter, and for a period of six (6) months each alternate week from 10.00 am Saturday until 4.00 pm Sunday;
(c) Thereafter, each alternate week from the conclusion of school Friday (or 4.00 pm if not a school day) until 4.00 pm Sunday;
(d) Such further and other times as may be agreed between the parties;
(e) As and from the October 2021 school holidays, for one half of each short end of term school holiday period at times to be agreed or in default of agreement from the conclusion of school on the last day of term until 5.00 pm on the middle day of the holiday period;
(f) On 25 December 2020 from 9.00 am until 1.00 pm;
(g) In 2021 and each odd year thereafter from midday on Christmas Eve until midday Christmas Day NOTING that the children will spend time with the wife from midday Christmas Day until midday Boxing Day;
(h) In 2022 and each even year thereafter from midday on Christmas Day until midday Boxing Day NOTING that the children will spend time with the wife from midday Christmas Eve until midday Christmas Day;
(i) On a week about basis as follows:-
(i) In December 2021/January 2022 and each alternate year thereafter, for the first week of the holidays commencing at the conclusion of school on the last day of term and concluding at 5.00 pm seven (7) nights thereafter, and each alternate week thereafter;
(ii) In December 2022/January 2023 and each alternate year thereafter, for the second week of the holidays commencing at 10.00 am on the Friday and concluding at 5.00 pm on the following Friday and each alternate week thereafter; and
(iii) That each party be at liberty to spend a two (2) week block with the children during the January school holidays by agreement and in default of agreement the husband to spend the last two (2) weeks of January with the children commencing on the Monday and concluding at 10.00 am on the Monday morning two (2) weeks later.
(j) That upon each of the children reaching the age of fourteen (14) years the time that they spend with the husband will be subject to their wishes;
(k) That if not already in his care the children will spend time with the husband from 10.00 am to 5.00 pm on Father’s Day;
(l) That if not already in her care the children will spend time with the wife from 10.00 am to 5.00 pm on Mother’s Day.
5.
That all handovers that do not occur at the children’s school shall occur by delivering and collecting the children to and from an agreed location in writing and in default of agreement at McDonald’s, Suburb E.
6.
That each party shall be at liberty to take the children for travel both within South Australia and interstate.
7.
That both parties be at liberty to attend at school and sporting activities and other events that parents would normally attend.
8.
That the parties shall facilitate the children’s attendance at their extra-curricular activities which have been agreed by the parties.
9.
That neither party will unilaterally enrol the children to any additional extra-curricular activities without the other party’s consent.
10.
That the parties be restrained and an injunction granted restraining either party from engaging the children or each of them in any therapeutic intervention by a psychologist, psychiatrist or counsellor other than may be agreed between the parties.
11.
In the event of a medical emergency or serious illness relating to the children the informed parent do notify the uninformed parent as soon as possible of all details of the emergency and allow that party to spend time with the children during the child’s recovery.
12.
That in full and final settlement of any claim that either party may have against the other or at any time in the future for settlement of property or alteration of interests in property:-
(a) That the husband and wife do all things necessary to distribute the funds in the NAB joint account representing the net proceeds of sale from the Suburb F property in the following manner:-
(i) To the wife the sum of THREE HUNDRED AND SIXTY FIVE THOUSAND TWO HUNDRED AND TWENTY SEVEN DOLLARS ($365,227);
(ii) To the husband the balance.
(b) That the husband will retain free from any claim by the wife the following:-
(i) Household contents currently in the husband’s possession;
(ii) All funds standing to the husband’s credit in any bank account;
(iii) Any superannuation entitlement of the husband subject to the provisions of these orders;
(iv) The husband’s interest in his Suburb G property;
(v) Such other personalty or realty as may be in the husband’s possession, power and control;
(c) That the wife will retain free from any claim by the husband the following:-
(i) Household contents currently in the wife’s possession;
(ii) All funds standing to the wife’s credit in any bank account;
(iii) Any superannuation entitlement of the wife subject to the provisions of these orders;
(iv) Any other personalty or realty as may be in the wife’s possession, power and control;
(d) That each party shall indemnify each other in respect of any personal or individual taxation liability;
(e) That within twenty one (21) days the parties do all things necessary to effect the closure of any joint bank account;
(f) That each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to retain pursuant to these orders;
(g) That the husband and the wife do all things necessary and sign all documents as may be required to give effect to the orders made herein and in the event of any failure by either party within fourteen (14) days of a written request to do so a Registrar of the Family Court of Australia is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute any necessary documents.
13.
The following shall apply to the husband’s interest in Super Fund 1 (“the Fund”):-
(a) That pursuant to section 90XT(4) of the Family Law Act 1975 (Cth) as amended, the Court allocates such base amount which will have SEVENTY THREE THOUSAND ONE HUNDRED AND SEVENTY SEVEN DOLLARS ($73,177) paid to the wife out of the husband’s interest in the Fund.
(b) Pursuant to paragraph 90XT(1)(a) of the Family Law Act 1975 (Cth) as amended, whenever a splittable payment becomes payable in respect of the superannuation interest of the husband:-
(i) The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using such base amount to ensure that the wife receives $73,177; and
(ii) There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the Order;
(iii) Paragraphs 13(b)(i) and (ii) of this Order shall have effect from the operative time, which is seven (7) days from the date of service of this Order on the trustee of the Fund;
(iv) Payments from the husband’s superannuation interest made after the trustee of the Fund has rolled over or transferred the transferrable benefits to a Fund of the wife’s choosing are not splittable payments;
(v) Within twenty one (21) days of these Orders being made:-
1. The wife shall serve a certified copy of this Order upon the trustee of the Fund;
2. The wife shall give notice in writing to the trustee of the Fund pursuant to Regulation 72 of the Family Law (Superannuation) Regulations 2001 (Cth);
(vi) That there be liberty to apply in relation to the implementation of this Order by the parties or the Trustee.
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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