FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pilar & Pilar [2024] FedCFamC1F 76
File number(s): ROC 389 of 2022 Judgment of: JARRETT J Date of judgment: 19 February 2024 Catchwords: FAMILY LAW – PARENTING – Where agreed that children should relocate with applicant to the United Kingdom – Dispute as to frequency children return to Australia to spend time with respondent
FAMILY LAW – PROPERTY – Add-back of unexplained expenditure of joint savings – Onus of proof for add-back arguments
Legislation: Family Law Act 1975 (Cth) ss 65D, 75(2), 79(2), 90XT(1)(a)
Family Law (Superannuation) Regulations 2001 (Cth)
Superannuation Industry (Superannuation) Regulations 1994 (Cth)
Cases cited: Barrett & Winnie (2022) 66 Fam LR 523
Trevi & Trevi [2018] FamCAFC 173
Zao & Lee [2023] FedCFamC1A 232
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 5 & 6 February 2024 Place: Brisbane Counsel for the Applicant: Ms Chesterman Solicitor for the Applicant: V.A.J. Byrne & Associates Solicitor for the Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Pendergast Solicitor for the Independent Children’s Lawyer: Swanwick Murray Roche Lawyers ORDERS
ROC 389 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PILAR
Applicant
AND: MR PILAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
19 JANUARY 2024
BY CONSENT THE COURT ORDERS THAT:
1.The applicant and the respondent have equal shared parental responsibility for decisions concerning the major long-term issues for the children X born 2013, Z born 2019 and Y born 2016.
2.The children shall live with the applicant.
3.The applicant is permitted to relocate to the United Kingdom at the time of her choosing upon the completion of order 4.
4.The children shall spend time with the respondent as agreed, and failing agreement, from 3:00pm on 29 March, 2024 to 9:00am on 19 April, 2024.
5.The children shall communicate with the party they are not otherwise spending time with:
(a)each Wednesday at 7:00am United Kingdom time;
(b)each Sunday at 10:00am United Kingdom time; and
(c)at all times reasonably requested by them;
with the party who does not have care of the children to instigate the call and the party with care of the children to ensure they are available to receive the call.
6.The respondent is restrained and an injunction hereby issues restraining the respondent from taking steps to establish a Passenger Analysis Clearance and Evacuation System Alert (PACE Alert) preventing the children from leaving Australia on their United Kingdom passports, specifically:
(a)passport number … for X born 2013;
(b)passport number … for Z born 2019; and
(c)passport number … for Y born 2016.
7.The applicant and respondent shall keep each other informed at all times of:
(a)their residential address, home telephone number and mobile telephone number and shall notify the other in writing of any change within 72 hours of that change;
(b)any medical emergency or major illness involving the children that occurs during periods when the children are residing with each of…
- AGLC
- Pilar & Pilar [2024] FedCFamC1F 76
- Case
- [2024] FedCFamC1F 76
- Decision Date
CaseChat Overview and Summary
The court addressed the parenting arrangements by granting equal shared parental responsibility for the children. It allowed the applicant to relocate to the United Kingdom and established a visitation schedule for the children to spend time with the respondent. The court also prohibited the respondent from taking steps to prevent the children from leaving Australia using a PACE Alert. Regarding the division of the joint savings, the court found that the onus of proof for add-back arguments lay with the party making the claim, which the respondent failed to discharge. Consequently, the court did not include the unexplained expenditure in the asset pool. The court ordered the payment of child support arrears from the proceeds held in the lawyer's trust account, deeming it as total satisfaction of the respondent's debt.
The court's final orders granted equal shared parental responsibility for the children, with the children residing with the applicant. The children were to spend specific periods with the respondent, with additional arrangements for travel and communication. The respondent was restrained from using a PACE Alert to prevent the children from leaving Australia. The court also ordered the division of proceeds from the sale of a family business and the payment of child support arrears. The parties retained all other assets, liabilities, and financial resources in their sole name.
Orders
Orders of the court
ROC 389 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS PILAR
Applicant
AND:
MR PILAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
19 JANUARY 2024
BY CONSENT THE COURT ORDERS THAT:
1. The applicant and the respondent have equal shared parental responsibility for decisions concerning the major long-term issues for the children X born 2013, Z born 2019 and Y born 2016.
2. The children shall live with the applicant.
3. The applicant is permitted to relocate to the United Kingdom at the time of her choosing upon the completion of order 4.
4. The children shall spend time with the respondent as agreed, and failing agreement, from 3:00pm on 29 March, 2024 to 9:00am on 19 April, 2024.
5. The children shall communicate with the party they are not otherwise spending time with:
(a) each Wednesday at 7:00am United Kingdom time;
(b) each Sunday at 10:00am United Kingdom time; and
(c) at all times reasonably requested by them;
with the party who does not have care of the children to instigate the call and the party with care of the children to ensure they are available to receive the call.
6. The respondent is restrained and an injunction hereby issues restraining the respondent from taking steps to establish a Passenger Analysis Clearance and Evacuation System Alert (PACE Alert) preventing the children from leaving Australia on their United Kingdom passports, specifically:
(a) passport number … for X born 2013;
(b) passport number … for Z born 2019; and
(c) passport number … for Y born 2016.
7. The applicant and respondent shall keep each other informed at all times of:
(a) their residential address, home telephone number and mobile telephone number and shall notify the other in writing of any change within 72 hours of that change;
(b) any medical emergency or major illness involving the children that occurs during periods when the children are residing with each of them.
8. This order shall act as an authority for schools that the children may attend from time to time to provide each of the parties will all information relating to the children’s progress at school, including school reports, newsletters and photographs.
9. This order shall act as an authority to the children’s medical and dental providers to discuss with either party the care, welfare, treatment and development of the children.
10. Neither party shall denigrate the other or their household either directly to or in the presence of the children nor allow any other person to do so.
PURSUANT TO S 65D OF THE FAMILY LAW ACT 1975 (CTH) THE COURT FURTHER ORDERS THAT:
11. In addition to the time provided for in order 4 hereof, the children shall spend time with the respondent as agreed, and failing agreement, as follows:
(a) commencing in 2026 and every second year thereafter, in Australia for the first two weeks of the children’s United Kingdom summer holidays;
(b) in the event the respondent travels to the United Kingdom, for two weeks on no more than four occasions each year.
12. For the purposes of order 4, the respondent shall provide the applicant with notice that he intends to exercise time with the children in either Australia or the United Kingdom with such notice to also include:
(a) a copy of the travel itineraries;
(b) details of travel arrangements; and
(c) contact details of where the children can be contacted throughout the period of travel;
no less than eight weeks prior to the date of intended travel.
13. The respondent shall be solely responsible for the costs of the children’s travel to and from Australia in 2026, and thereafter the parties share the costs of travel equally.
PURSUANT TO S 79(2) OF THE FAMILY LAW ACT 1975 (CTH), THE COURT FURTHER ORDERS THAT:
14. In accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splitable payment becomes payable in respect of the interest of the respondent in the Superannuation Fund 1 Trust, Superannuation Fund 1, the applicant is entitled to be paid the amount (if any) calculated in accordance with Part 6 of the Family Law Superannuation) Regulations 2001 (Cth), using a base amount of thirty thousand dollars ($30,000) and there shall be a corresponding reduction in the entitlement of the respondent to whom the splitable payment would have been made, but for these orders.
15. Order 14 hereof has effect from the operative time.
16. The operative time of these orders shall be the beginning of the fourth business day after the day on which a certified sealed copy of these orders is served on the Trustee.
17. Having been afforded procedural fairness in relation to the making of this order, orders 14 to 16 and order 18 bind the Trustee of Superannuation Fund 1.
18. The Trustee of Superannuation Fund 1, the applicant and respondent, in accordance with the obligations set out under the Family Law Act 1975 (Cth), the Family Law (Superannuation) Regulations 2001 (Cth) and the Superannuation Industry (Superannuation) Regulations 1994 (Cth) shall do all acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to, the applicant in accordance with these orders.
19. The proceeds held in the V.A.J. Byrne & Co Lawyers Trust Account be paid in the following manner and priority:
(a) an amount of $120,000 to be held in the V.A.J. Byrne and Co Lawyers Trust Account for the payment of capital gains tax associated with the sale of B Pty Ltd, and once the liability for capital gains tax is settled, the balance, if any, to the respondent;
(b) the amount of $313,958.51 to the applicant;
(c) the amount of $34,585.03 to the applicant and for that purpose such payment shall be deemed by the parties as total satisfaction of the respondent’s outstanding child support debt and the parties shall do all acts necessary to notify the Child Support Agency that such debt has been paid, including providing to the Child Support Agency a copy of these orders;
(d) the balance to the respondent.
20. The parties otherwise retain all assets, liabilities and financial resources in their sole name.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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