FAMILY COURT OF AUSTRALIA
| POWELL & CHRISTENSEN | [2020] FamCA 944 |
| FAMILY LAW – PARENTING – PROPERTY – family violence – serious assault and deprivation of liberty – long term context of coercion and control – effects of ongoing contact on parenting capacity – where risks erode benefits of meaningful relationship – analogous discretionary context of sentencing – where considerations overlap – considerations not to be viewed in isolation from each other – where factual basis for risk is established – lack of child focus – absence of opinion rule – assessment of expert evidence – assessment of each fact in issue – application of expertise and underlying facts and weight – unequal contributions post separation – unequal future economic position – failure to disclose – valuation of cryptocurrency where failure to disclose – best evidence as to purchase value – just and equitable – consideration of specific effects of orders in determination of what is just and equitable |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 65DAA, 75(2), 79(1), 79(2), 79(4), 75(2), 90SF, 90SF(3)(r), 90SM, 90XT(2)(b), 102NA |
| Bevan v Bevan (2013) 49 FamLR 387 Dickons & Dickons [2012] FamCAFC 154 In the Marriage of Pastrikos (1979) 6 FamLR 497 Kowaliw and Kowaliw (1981) FLC 91-092 M v M (1988) 166 CLR 69 Markarian v The Queen (2005) 215 ALR 213 Marsden & Winch (No 3) (2007) FamCA 1364 N & S and the Separate Representative (1996) FLC 92-655 NHC & RCH [2004] FamCA 633 Stanford v Stanford (2012) 247 CLR 108 Steinbrenner & Steinbrenner [2008] FamCAFC 193 Veen v The Queen (No 2) (1988) 164 CLR 465 Weir v Weir (1992) 16 FamCA 69 Wynona v Friend [2011] FamCAFC 6 |
| APPLICANT: | Ms Powell |
| RESPONDENT: | Mr Christensen |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs McGregor |
| FILE NUMBER: | CAC | 1032 | of | 2018 |
| DATE DELIVERED: | 13 November 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 21-25 October 2019 and 21 October 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Dobinson Davey Clifford Simpson |
| SOLICITOR FOR THE RESPONDENT: | Self-representing |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid, ACT |
Orders
In relation to the children it is ordered that:
Y, born … 2009, and X, born … 2011, ("the children") live with the Mother.
The Mother has sole parental responsibility for the children.
The Father is at liberty to send letters, cards and gifts to the children to Parcel Locker …, 53-73 Alinga Street, Canberra ACT 2601.
Otherwise, there is no order permitting or for time or communication between the Father and the children.
Within 7 days of the making of these orders, the Father shall deliver to the offices of the Mother's solicitors, all of the following documents that are in his possession or control:
a.The children’s passports;
b.The children’s birth certificates;
c.The Mother’s passport; and
d.The Mother’s birth certificate.
The children are permitted to have an Australian travel document and leave the Commonwealth of Australia to travel overseas at the sole discretion of the Mother.
The Mother is permitted to make…
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- AGLC
- POWELL & CHRISTENSEN [2020] FamCA 944
- Case
- [2020] FamCA 944
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were: first, whether it was in the best interests of the children for them to live with the Mother and for her to have sole parental responsibility, given the father's alleged family violence and its potential impact on his parenting capacity; and second, how to achieve a just and equitable division of the parties' property, taking into account unequal contributions post-separation, future economic positions, and the father's failure to disclose certain assets, specifically cryptocurrency.
Gill J's reasoning in relation to parenting focused on the significant risks posed by the father's conduct, drawing an analogy to the discretionary considerations in sentencing. The court found that the factual basis for the risks associated with the father's behaviour was established, and that these risks eroded any potential benefits of a meaningful relationship between the father and the children. The court also considered the assessment of expert evidence and applied the "no opinion rule" in evaluating the evidence presented. In property division, the court considered unequal contributions and future economic positions, and addressed the valuation of cryptocurrency where there had been a failure to disclose, relying on the best available evidence of purchase value.
The court ordered that the children live with the Mother and that she have sole parental responsibility. Contact between the father and the children was significantly restricted, limited to the father sending letters, cards, and gifts to a designated parcel locker, with no other orders for time or communication. The court also made detailed orders for the division of property, including the retention of specific assets by each party, a payment of $100,000 from the father to the mother in instalments, and a superannuation splitting order in favour of the mother. The father was also ordered to transfer his interest in certain companies and trusts to the mother, and to facilitate her resignation as a director and the removal of her interest in a trust. Each party was ordered to indemnify the other against specific liabilities.
Orders
Orders of the court
In relation to the children it is ordered that:
1.
Y, born … 2009, and X, born … 2011, ("the children") live with the Mother.
2.
The Mother has sole parental responsibility for the children.
3.
The Father is at liberty to send letters, cards and gifts to the children to Parcel Locker …, 53-73 Alinga Street, Canberra ACT 2601.
4.
Otherwise, there is no order permitting or for time or communication between the Father and the children.
5.
Within 7 days of the making of these orders, the Father shall deliver to the offices of the Mother's solicitors, all of the following documents that are in his possession or control:
a. The children’s passports;
b. The children’s birth certificates;
c. The Mother’s passport; and
d. The Mother’s birth certificate.
6.
The children are permitted to have an Australian travel document and leave the Commonwealth of Australia to travel overseas at the sole discretion of the Mother.
7.
The Mother is permitted to make a sole application to the Department of Foreign Affairs and Trade ("the Australian Passports Office") for the children to be issued with an Australian travel document, without the Respondent's consent and/or his execution of the application form.
8.
To give effect to the above orders:
a. The Mother is permitted to provide to the Australian Passports Office an original or certified copy of these Orders; and
b. Upon sole application by the Mother (and meeting any other administrative requirements), the Australian Passports Office may grant the application for the children's Australian travel document, with the requirement for the Father’s consent or signature to be dispensed with.
9.
Upon the expiry of the children's passports, the Mother is permitted to make an application to the Australian Passports Office to re-new the children's passports at any time, and without the Father’s consent and/or his execution of the application or renewal form.
In relation to the property of the parties it is ordered that:
10.
The Mother retains, to the exclusion of the Father, and is declared the sole beneficial owner of the following:
a. Motor Vehicle 1 (Registration No. …);
b. Recreational vehicle;
c. Funds standing to the credit of bank accounts in her sole name, including but not limited to P Bank Account (x…2l), P Bank Savings Account (x…20) and NAB Savings Account (x…95);
d. Gold and silver held with Company G (the metal holdings);
e. All household contents in her possession; and
f. Her superannuation entitlements with Super Fund 1.
11.
The Father shall, within 7 days of the making of these Orders, sign all documents as may be required to transfer his interest and ownership of the metal holdings to the Mother.
12.
The Father retains, to the exclusion of the Mother, and is declared the sole beneficial owner of the following:
a. Motor Vehicle 2 (Registration No. …);
b. Funds standing to the credit of bank accounts in his sole name;
c. Bitcoin and like cryptocurrencies registered in his sole name;
d. His interest in K Pty Ltd (the Business); and
e. N Pty Ltd.
13.
The Mother shall, within 7 days of the provision of the relevant documents to her by the Father, sign all documents as may be required to transfer her interest and ownership of the motor vehicle to the Father at his sole cost and expense.
14.
Within 28 days of the making of these orders the Father shall do all acts and things at his sole cost and expense, and shall provide to the Mother the necessary documentation for her to execute as are required to:
a. Facilitate the Mother resigning as a director of N Pty Ltd ("the Company") (and in doing so, substitute the Father as sole director and secretary of the entities);
b. Facilitate the Mother transferring her six (6) ordinary shares (being $6.00) in the Company, to the Father (including provision by the Mother of a duly executed Share Transfer in registrable form);
c. Facilitate the removal of the Mother as an appointor and beneficiary of the Christensen Family Trust ("the Trust");
d. Relinquish any and all interest the Mother had, has, or may have in the future, in the Trust (including any and all assets of the Trust) in her capacity as a beneficiary of the Trust.
15.
The Mother shall indemnify the Father, and keep him indemnified, against unpaid liability arising from, or associated with, the following:
a. Any debt or liability in the sole name of the Applicant, including but not limited to her P Bank Personal Loan (x…00).
16.
The Father shall indemnify the Mother, and keep her indemnified, against unpaid liability arising from, or associated with, the following:
a. Any claim, action, suit or demand made against the Mother in relation to the Company or the Business or the Trust, including but not limited to such as may arise against the Mother in her capacity as an employee, shareholder, director, trustee, appointor, beneficiary, creditor, guarantor, debtor or company member;
b. Any debt or liability in the sole name of the Father;
c. Credit cards in the Father’s sole name, including his NAB card (x…07) and American Express card (x…05).
17.
Save as otherwise provided for in these Orders:
a. Each party shall be solely entitled to the exclusion of the other to all property (including chose-in-action) in the possession of such party as at the date of these Orders;
b. Monies standing to the credit of a party in any bank account is to become the property of the party in whose name the account is registered;
c. Each party shall forego any claim or claims the party may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to, or earned by, the other;
d. Insurance policies remain the sole property of the owner named thereon;
e. Each party shall 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
f. Any joint tenancy of the parties in any real or personal property is hereby expressly severed.
18.
Liberty is granted to the Mother to apply with respect to implementation of these Orders upon seven (7) day's written notice.
Payments
19.
The Father pay to the Mother the sum of $100 000 ("the Payment"), in four instalments of $25 000, to be paid in the following manner:
a. On or before 5 January 2021, the first instalment of $25 000;
b. On or before 5 March 2021, the second instalment of $25 000;
c. On or before 5 May 2021, the third instalment of $25 000; and
d. On or before 5 July 2021, the final instalment of $25 000.
20.
In the event the Father defaults in making the Payment (or any instalments) within the specified period of time, the Father shall pay to the Mother interest at the rate prescribed in the Family Law Rules 2004 from time to time, calculated daily, upon such part of the Payment that remains outstanding.
21.
Other than is otherwise provided for in these Orders, or in order to make the Payment, pending the completion of the Payment, the Father be and is hereby restrained from dealing with, encumbering or disposing of his interest in K Pty Ltd trading as Q Company ("the business").
Superannuation
22.
Noting the Applicant’s compliance with Orders made on 30 March 2020 and noting the Applicant and Respondent will have been accorded procedural fairness as trustees in accordance with those orders in relation to making of the superannuation splitting orders, these Orders bind the Trustees of the Fund.
23.
The next three clauses immediately following this clause of this Order are collectively referred to as “the Splitting Order”.
24.
Orders 25 to 27 (inclusive) have the effect from the operative time and the operative time means the date of these orders.
25.
That a base amount be allocated, as required by s 90XT(4) of the Family Law Act 1975 to the Applicant out of the Respondent’s superannuation interest in the Fund by reference to the following method:
BA = RMB divided by 2
Where:
RMB = The Father’s Member Benefit in the Fund as at 30 June 2020 of $226 116.79
BA = Base Amount.
26.
That in accordance with s 90XT(1)(a) of the Family Law Act 1975:
a. the Mother is entitled, using the base amount allocated in the clause immediately preceding this clause of this Order, to the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
b. The Father’s superannuation entitlement (and the entitlement of any other person to payments out of the Father’s superannuation interest) in the Fund, is correspondingly reduced.
27.
The Trustees do all such acts and things and signed all such documents as may be necessary to:
a. calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Mother in the clause immediately preceding this clause of this Order; and
b. pay the entitlement whenever the Trustee makes a splittable payment out of the Father’s superannuation interest in the Super Fund.
c. To facilitate orders 27a and 27b above, the Trustees will engage J Accountants to complete all work associated with implementation of the super splitting order.
28.
The service of this Order shall be deemed to have occurred on the date of this Order by reason that the Mother and Father are the sole Trustees of the Fund and the Court notes that service will enliven the operating standards under Part 7A of the Superannuation Industry (Supervision) Regulations 1994.
29.
That after service by the Trustee of the payment split notices pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 in accordance with the operating standards under the Superannuation Industry (Supervision) Regulations 1994, the Mother shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising her request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 (“the Mother’s r.7A.06 Request”) for the transfer of the Transferable Benefits to be transferred to another complying superannuation fund (“the Mother’s New Super Fund”).
30.
That forthwith upon the making of these Orders, the Trustees shall convene a meeting by the recording of minutes and not later than 14 days after receipt of the Mother’s r.7A.06 Request and in that meeting do all such acts and things, and sign all such documents as may be necessary to authorise:
a. the sale of investments to ensure it has sufficient by way of cash to transfer the Transferable Benefits on behalf of the Applicant to the trustee of the Mother’s New Super Fund; and
b. the transfer of the Transferable Benefits (in accordance with the operating standards in r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994).
31.
Pending the transfer of the Transferable Benefits on behalf of the Mother to the trustee of the Mother’s New Super Fund:
a. The Mother and Father be and are hereby restrained from dealing with, charging, encumbering or disposing of any of the investment property of the Super Fund other than in accordance with the terms of this Order; and
b. The Mother and Father shall immediately revoke any binding death benefit nomination already made and each party be, and is hereby, restrained from:
i. making any binding death benefit nomination in favour of a child described in regulation 13 of the Family Law (Superannuation) Regulations 2001;
ii. making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and
iii. doing any such act or thing which would defeat, extinguish or reduce the entitlement of the Applicant under this Order.
And for the avoidance of doubt, following completion of the transfer of the Transferable Benefits to the trustee of the Mother’s New Super Fund, the Father may attend to his death benefit nomination.
32.
For the purposes of these Orders, any action required of the Trustees may be undertaken by and or satisfied by actions taken by the Mother alone, on condition that the Mother provides to the Father prior written notice of her intention to take that action.
AND IT IS NOTED:
A. The value of the Transferable Benefits to be transferred from the Father’s interest in the Super Fund to the trustee of the Mother’s New Super Fund are calculated in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994; and
B. Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the Father’s interest in the Fund made after the Trustee has transferred the Transferable Benefits from the Respondent to the trustee of the Mother’s New Super Fund are not splittable payments.
Other
33.
The Mother and Father are granted permission to provide copies of any and all financial/property orders made in this matter either in the Federal Circuit Court or in the Family Court of Australia, to the Department of Human Services or their representatives, for the purposes of determining child support.
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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