Prescott and Prescott - [2015] FCCA 66

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRESCOTT & PRESCOTT

[2015] FCCA 66

Catchwords:
FAMILY LAW – Father engages in financial abuse post separation – refuses to pay mortgage or child support – offer no explanation as to how wife and children are to survive financially – home repossessed – all equity lost in the former matrimonial home – father hostile and obstructive towards communication with the mother – father regards all Court events with contempt – contested parenting applications – no insight into his strongly held views about his “rights” which father places over and above the best interests of the children – father expressly states he does not care about communication with the mother – father directs his income into paying mortgage on new defacto’s home – vexatious applications for mother to pay him spousal maintenance and child support.

Legislation:

Family Law Act 1975, ss.60 CC, 61DA, 65 DAA, 72(1), 75(2), 79, 118

MRR v GR [2010] HCA 4
Stanford & Stanford [2012] FamCAFC 1
C & C [2005] FamCA 429

Applicant:

MS PRESCOTT

Respondent:

MR PRESCOTT

File Number:

TVC 414 of 2012

Judgment of:

Judge Willis

Hearing dates:

29 & 30 July 2014

Date of Last Submission:

30 July 2014

Delivered at:

Cairns

Delivered on:

27 January 2015

REPRESENTATION

Solicitors for the Applicant:

J. Hamilton & Associates Solicitors

Counsel for the Applicant:

Mr Fellows

Solicitors for the Respondent:

Self-represented

Counsel for the Independent Children's Lawyer:

Ms Mayes

Solicitors for the Independent Children's Lawyer:

Greg Pohlmann Family Lawyer

ORDERS

CHILDREN

That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2005, Y born (omitted) 2007 and Z born (omitted) 2009 (“the children”) including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
That the children live with the Mother at all times other than when they spend time with the father pursuant to the terms of these Orders.

Father’s time with children – school terms

Subject to Order 10 herein, the Father shall spend time with and communicate with the children at all reasonable times as agreed between the parents and failing agreement as follows:-
(a)During the school term each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday or 9:00am Tuesday in the event that Monday is a public holiday or pupil free day.
Changeovers are to occur as follows:
(a)To and from the (omitted) Children's Contact Centre. In the event that the centre is closed the handovers will occur to or from the front of the Police Station in (omitted), currently located in (omitted);
(b)In the event that there are difficulties with any of the aforementioned locations, changeovers will always occur at a place nominated by the mother who shall…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prescott and Prescott

Details

AGLC: Prescott and Prescott [2015] FCCA 66
Case: [2015] FCCA 66
Decision Date: 27 January 2015

CaseChat Overview and Summary

This matter concerned orders made by Judge Willis in the Federal Circuit Court of Australia concerning the children of Ms Prescott and Mr Prescott, and the property settlement between them. The proceedings involved applications relating to parental responsibility, living arrangements for the children, and the division of various assets and superannuation interests.

The court was required to determine the terms of parenting orders, including the allocation of sole parental responsibility for long-term decisions concerning the children's care, welfare, and development, and to establish a schedule for the children to spend time with each parent. Additionally, the court had to address the division of property, including funds held in a solicitor's trust account, a company, a motor vehicle, a camper trailer, and superannuation entitlements. The court also considered applications for spousal maintenance and child support.

In relation to the children, the court ordered that the Mother have sole parental responsibility for significant long-term decisions and that the children live with the Mother, with specific provisions for the Father's time with the children during school terms, holidays, and on special days. The court also made orders regarding communication between parents and children, and the children's participation in extracurricular activities. Regarding property, the court ordered the distribution of funds from a trust account to cover various liabilities and payments, with any shortfall to be paid by the Husband. The Wife was to retain a Ford Falcon and a camper trailer, and the Husband was to transfer the registration of the vehicle and personalised plates to her. The court also made detailed orders for the splitting of the Husband's superannuation interests in three separate funds, allocating 100% to the Wife. The Husband's application for spousal maintenance and for the Wife to pay child support were dismissed, and the Wife was to receive spousal maintenance of $200 per week for three years. The Husband was made solely responsible for any alleged debts owed to Ms R.

The court further ordered that, save for the express provisions within the orders, each party was entitled to all property in their possession, including separate bank accounts, and that each party would be solely liable for and indemnify the other against any liabilities or personal debts. The Registrar of the Federal Circuit Court was appointed to execute documents if a party refused or neglected to do so. Provisions were also made for the parties to provide a copy of the orders to financiers and government departments, and for the process of applying for costs.

Orders

Orders of the court

CHILDREN

That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2005, Y born (omitted) 2007 and Z born (omitted) 2009 (“the children”) including but not limited to:

(a) a child’s education (both current and future);

(b) a child’s religious and cultural upbringing;

(d) a child’s name;

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.

That the children live with the Mother at all times other than when they spend time with the father pursuant to the terms of these Orders.

Father’s time with children – school terms

Subject to Order 10 herein, the Father shall spend time with and communicate with the children at all reasonable times as agreed between the parents and failing agreement as follows:-

(a) During the school term each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday or 9:00am Tuesday in the event that Monday is a public holiday or pupil free day.

Changeovers are to occur as follows:

(a) To and from the (omitted) Children's Contact Centre. In the event that the centre is closed the handovers will occur to or from the front of the Police Station in (omitted), currently located in (omitted);

(b) In the event that there are difficulties with any of the aforementioned locations, changeovers will always occur at a place nominated by the mother who shall have the sole discretion of determining the changeover location.

This regular alternating weekend time will be suspended during the school holiday periods referred to in these Orders.

Father’s holiday time with the children

The father will spend holiday time with the children as follows unless agreed in writing otherwise:

(a) The first half of all school holidays in odd numbered years and the second half in all even numbered years;

(b) The first half of the Christmas, Easter, June/July and September/October school holidays to commence at 9:00am on the first Saturday after the conclusion of the school term;

(c) The end of the school holidays will be 4:00pm on the Sunday immediately prior to the commencement of the next school term or year;

(d) The mid point is to be at 4:00pm on the second Sunday for the Easter, June/July and September/October school holidays; and

(e) The mid point for the Christmas school holidays is to be at 4:00pm on the fourth Sunday after the commencement of the school holidays.

In the event that either of the parents travel outside of Queensland with the children they will provide the other parent within fourteen (14) days notice of their intention to travel and shall provide details of where they intend to travel and contact details for the children in their absence.

Each of the parents shall be permitted to communicate with the children by telephone each Thursday that they are not in that parent’s care between 5:00 pm and 5:30 pm. The non-resident parent shall initiate the call and the other parent will facilitate the call.

The father shall ensure that the children attend and participate in their scheduled sporting, recreational and extracurricular activities when they are in his care.

10.

In the event that the father is not able to take the children to their scheduled sporting and extracurricular activities, pursuant to Order 9 herein, the father will notify the mother as soon as possible and no later than the Wednesday prior to the weekend that the children will be with the father where upon the following arrangement will occur:

(a) The mother shall retain the children contrary to the prescribed handover referred to in Order 3 (a) herein;

(b) The mother will take the child or children to their scheduled sporting and extra-curricular activities:

(c) The children will be handed over to the father at 5:00 pm Saturday at the (omitted) Children's Contact Service or other time as nominated by the mother after the conclusion of the children’s sporting and extra-curricular activities. IT IS NOTED that these Orders apply to all of the children as do all of the Orders herein.

Special days

11.

In the event that Father’s Day falls on a weekend that the children are not otherwise spending time with the father pursuant to his time in these Orders, or Mother’s Day falls on a weekend that the children are not living with her pursuant to the terms of these Orders, the parties will swap their respective weekends to ensure that the children spend the Father’s Day weekend with the father and the Mother’s Day weekend with the mother.

12.

Subject to Order 13 herein, on each of the children’s birthdays all three (3) children shall spend time with the non-resident parent from 3:00 pm until 5:00 pm when the birthday falls on a school day and from 9:00 am until 2:00 pm when the birthday falls on a non-school day, with the non-resident parent to collect the children from school if it is a school day and return them to the (omitted) Children's Contact Service at 5:00 pm and on those occasions when the Contact Service is not open, the children will be returned to the (omitted) Police Station or at any other location nominated by the mother pursuant to the terms of Order 4 herein.

13.

Order 12 will not apply if the children are otherwise spending block holiday time away from (omitted) with the other parent during school holidays, as provided for in these Orders. In other words, Order 12 is not intended to interfere with either parent’s block holiday time with the children, in the event that the other parent is away from (omitted) or has other plans for their holiday with the children.

General Orders

14.

The Mother and the Father shall each keep the other informed of their current residential address, their current mobile telephone and landline telephone numbers and shall advise the other parent of any changes within forty-eight (48) hours of any change.

15.

The parents shall each establish a linked account on the Our Children Australia website and shall communicate with respect to the arrangements for the children on that site except in emergency situations when they shall communicate via SMS text, mobile telephone or a landline telephone.

Commencement of Father’s time

16.

The father’s time to be spent with the children pursuant to Order 3 herein will commence as and from Friday 13 February 2015. In the meantime, the children will live with the mother.

17.

The Independent Children’s Lawyer is discharged.

PROPERTY

IT IS ORDERED THAT:

18.

That of the funds held in the Trust Account of J. Hamilton & Associates Solicitors in the names of Ms Prescott and Mr Prescott ($16,438.80) be released and applied in payment of the following:-

(a) Any outstanding taxation or ASIC liability of the company (omitted) ((omitted)) Pty Ltd (ABN (omitted));

(b) Payment of any rates outstanding to the (omitted) Council for the land and residence at Property T, more properly described as Lot (omitted) on Registered Plan (omitted), County of (omitted), Parish of (omitted), Title Reference (omitted), including payment of Claim No. (omitted) filed in the Magistrates Court Mackay, as at the date of these Orders;

(c) Any outstanding monies owing to (omitted) Accountants arising as a result of the preparation of company income tax return and business activity statements for (omitted) ((omitted)) Pty Ltd;

(d) (omitted) Real Estate in the sum of $892.45;

(e) Any shortfall to be paid by the Husband within 14 days of the date of these Orders, with confirmation of payment to be made to J. Hamilton & Associates within 7 days of the date of payment;

(f) The balance (if any) to be paid to the Wife.

19.

That within fourteen (14) days of the date of these Orders, the Husband and Wife shall take all necessary steps and sign all documents necessary to wind up the company (omitted) ((omitted)) Pty Ltd, ABN (omitted) with the Husband to be solely responsible for the cost.

20.

The Wife is to retain to the exclusion of the Husband the following:-

(a) Ford Falcon motor vehicle, registration number (omitted);

(b) Camper Trailer.

21.

That within seven (7) days of the date of these Orders, the Husband shall take all necessary steps and sign all documents necessary to effect the transfer of the registration of the Ford Falcon (motor vehicle registration (omitted)) and to effect the transfer of the Personalised Vehicle Registration Plates (omitted) to the Wife.

Superannuation

22.

That the Wife shall retain to the exclusion of the Husband her (omitted) Superannuation entitlement and benefits.

23.

The Husband shall retain to the exclusion of the Wife his (omitted) Superannuation entitlements and benefits.

(omitted) Super – Splitting Order

24.

That the following occur with respect to the Husband's (omitted) Superannuation:-

(a) Pursuant to section 90MT (4) of the Family Law Act 1975 (as amended) one hundred percent (100%) be allocated to the Applicant Wife, Ms Prescott in respect of the Respondent Husband, Mr Prescott’s superannuation interest in the (omitted) Superannuation Fund (“the fund”), Member No. (omitted);

(b) Pursuant to section 90MT (1)(b) of the Family Law Act 1975 (as amended) whenever a splittable amount becomes payable in respect of the said interest the Applicant is entitled to be paid with the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 by reference to a figure of one hundred percent (100%) of the Respondent’s interest and there is a corresponding reduction in the entitlement the Respondent would have had but for these Orders.

25.

Order 24 has the effect of the operative date:-

(a) The operative date of these Orders is the fourth (4th) business day after the Order is served on the Trustee of (omitted) Superannuation Fund.

(b) This Order binds the Trustee of (omitted) Superannuation Fund.

26.

The Husband and Wife and the Trustee of (omitted) Superannuation Fund have liberty to apply upon giving each of the other parties at least seven (7) days written notice.

(omitted) Super – Splitting Order

27.

That the following occur with respect to the Husband's (omitted) Superannuation:-

28.

Order 27 has the effect from the operative date:-

(a) The operative date of these Orders is the fourth (4th) business day after the Order is served on the Trustee of (omitted) Superannuation Fund;

(b) This Order binds the Trustee of (omitted) Superannuation Fund;

(c) The Applicant Wife shall within seven (7) days of the date of these Orders, request the Trustee of (omitted) Superannuation Fund to roll over/ transfer the sum calculated by reference to the one hundred percent (100%) of the Respondent’s interest in the (omitted) Superannuation Fund in the name of Mr Prescott to a fund held for the benefit of Ms Prescott;

(d) Pursuant to the Family Law (Superannuation) Regulations 2001 Mr Prescott shall do all such things and sign all necessary documents to give effect to the request and transfer of funds herein as may be required by the Trustee;

(e) The Trustee, (omitted) Superannuation Fund’s fees in respect of both the payments split and the request for transfer herein shall be paid by the Applicant to the Trustee forthwith upon receipt of notification by the Trustee of the amount of such fees.

29.

The Wife and the Husband and the Trustee of the (omitted) Superannuation Fund have liberty to apply in relation to the workings of these Orders upon giving each of the other parties at least seven (7) days written notice.

(omitted) Superannuation – Splitting Order

30.

That the following occur with respect to the Husband's (omitted) Superannuation:-

(a) Pursuant to section 90MT (4) of the Family Law Act 1975 (as amended) one hundred percent (100%) be allocated to the Applicant Wife, Ms Prescott in respect of the Respondent Husband, Mr Prescott’s superannuation interest in (omitted) Super (“the fund”), Member No. (omitted);

31.

Order 30 has effect from the operative date:-

(a) The operative date of these Orders is the fourth (4th) business day after the Order is served on the Trustee of (omitted) Super ((omitted) Super ).

(b) This Order binds the Trustee of (omitted) Super.

(c) The Applicant Wife shall within seven (7) days of the date of these Orders, request the Trustee of (omitted) Super to roll over/ transfer the sum calculated by reference to the one hundred percent (100%) of the Respondent’s interest in (omitted) Super in the name of Mr Prescott to a fund held for the benefit of Ms Prescott;

(e) The Trustee, (omitted) Super fees in respect of both the payments split and the request for transfer herein shall be paid by the Applicant to the Trustee forthwith upon receipt of notification by the Trustee of the amount of such fees.

32.

The Wife and the Husband and the Trustee of (omitted) Super have liberty to apply upon giving each of the other parties at least seven (7) days written notice.

Spousal Maintenance

Wife’s Application

33.

That the Husband pay to the Wife by way of spousal maintenance the sum of $200.00 (two hundred dollars) per week for an initial period of 3 years from the date these Orders with that sum to be paid by way of direct deposit into a bank account nominated by the Wife from either a direct deduction from the father’s bank account or salary, such arrangements to be at the sole nomination and discretion of the Wife. The Husband is to inform the Wife of the relevant information required to establish either arrangement and he is to comply with all requests of the Wife or his bank or employer, in order to comply with this Order.

Husband’s Application

34.

The Husband’s application for spousal maintenance is dismissed.

Child Support

35.

The Husband’s application for the Wife to pay the Husband Child Support is dismissed.

Alleged debt to Ms R

36.

The Husband is solely responsible for the payment of all or any debts of any kind whatsoever, allegedly owed to Ms R or her agents, by the Husband or the Wife or relating to any alleged joint debt of the Husband and Wife to Ms R and the Husband shall indemnify and keep indemnified the Wife against any or all such alleged debts of whatsoever kind.

General Orders

37.

Save as is expressly provided for in these Orders, each party shall be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these Orders, including but not limited to:-

(a) Money standing to the credit of either party in any separate bank account is to remain their property;

(b) Each party foregoes any claims they may have to any superannuation benefit belonging to or earned by the other;

(c) Each party hereby foregoes any claim they may have to any long service leave, annual leave, or sick leave belonging to or earned by the other or to which the other may become entitled;

(d) Each party 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;

(e) Each party shall be solely liable for and shall indemnify the other in relation to any personal debt howsoever arising; and

(f) Neither party may hereafter pledge the credit of the other;

(g) This Order shall be binding on the parties heirs, executors and assigns respectively.

38.

That for the purposes of giving effect to these Orders herein both parties shall be at liberty to provide a copy of these Orders to their Financier and other Government Departments.

39.

That if either party refuses or neglects to sign (within ten (10) days of a request to do so) any documents that give effect to these Orders, then pursuant to the provisions of the Family Law Act 1975 (as amended):-

(a) The Registrar of the Federal Circuit Court of Australia at Townsville is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all such deed instrument or documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to these Orders; and

(b) The Affidavit of the party or the Solicitor representing that party seeking to give effect to these Orders shall be sufficient proof of the default of the other party necessary to give effect to this Order.

Costs

40.

In the event that there is any application for costs, the Applicant is to file and serve written submissions, a draft Order and a schedule of costs pursuant to the rules and regulations of the Court validating the amount claimed, within 28 days of the date of this Order. The Respondent is to file and serve written submissions within 28 days of being served. A date will then be allocated for the oral hearing of the costs application.

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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