FAMILY COURT OF AUSTRALIA
| SPENGLER & THOMAS | [2017] FamCA 747 |
FAMILY LAW – CHILDREN – Final orders – Relocation – Where wife seeks to relocate with the child from Darwin to Country V – Whether relocation is in the child’s best interest – Consideration to the proposals of the parties – Where the Court is satisfied that both parties will promote a meaningful relationship with the other party – Where consideration is given to the mental wellbeing of the wife as the primary carer if ordered to remain in Australia – Where it is in the best interests of the child to relocate to Country V
FAMILY LAW – CHILDREN – Final orders – Relocation – Time spent – Where in the event that the wife is permitted to relocate to Country V the husband sought orders that the child spend all school holidays with him in odd numbered years and all summer school holidays and Christmas school holidays in even numbered years – Where the husband is willing and able to assist in the financial cost of international air travel – Where the family consultant recommended that the father spend time with the child on two extended periods per year
FAMILY LAW – PROPERTY – Final orders – Where each of the parties seek a division of property – Where the husband is a partner in the business – Consideration of expert valuation of business – Where property is determined to be owed by husband and not the business – Adjustment of property interest in favour of the husband.
FAMILY LAW – PROPERTY – Spousal Maintenance – Where the wife seeks a continuation of spousal maintenance in the sum of $250 per week until her departure to Country V.
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79
AMS v AIF (1999) 199 CLR 160
Beckham v Desprez [2015] FamCAFC 247
Blanding v Blanding [2016] FamCAFC 21
C & C (2005) FLC 93-212
Chorn & Hopkins (2004) FLC 93-204
Commonwealth v Milledge (1953) 90 CLR 157
Godfrey v Sanders [2007] FamCA 102
Lenehan & Lenehan (1987) FLC 91-858
McF & McF [2004] FamCA 1309
MRR v GR (2010) 240 CLR 461
Stanford v Stanford [2012] 247 CLR 108
Starr & Duggan [2009] FamCAFC 115
Waters & Jurek (1995) FLC 92-635
Zahawi & Rayne [2016] FamCAFC 90
APPLICANT: | Mr Spengler |
| RESPONDENT: | Ms Thomas | |||||
| FILE NUMBER: | DNC | 79 | of | 2015 | ||
| DATE DELIVERED: | 22 September 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 15, 16, 17, 18 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Farmer |
| SOLICITOR FOR THE APPLICANT: | Withnalls Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Barry |
| SOLICITOR FOR THE RESPONDENT: | Darwin Family Law |
Orders
That the parties have equal shared parental responsibility for B born … 2011 (“the child”).
That the child shall live with the wife.
As and from 2 January 2018 the wife be permitted to relocate the residence of the child from Australia to Country V in…
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- SPENGLER & THOMAS [2017] FamCA 747
- Case
- [2017] FamCA 747
- Decision Date
CaseChat Overview and Summary
The court was required to determine the arrangements for the child's future care and contact, including the practicalities of international relocation and shared parental responsibility. Additionally, the court needed to resolve the parties' financial claims, including the division of their assets and liabilities and the provision of spousal maintenance.
Berman J ordered that the parties share equal parental responsibility for the child, who would live with the wife. Crucially, the wife was permitted to relocate the child from Australia to Country V in Europe from 2 January 2018. The orders detailed specific arrangements for the child to spend time with the husband in Australia during European summer and Christmas holidays, and for the husband to spend time with the child in Country V, with provisions for travel arrangements and associated costs. The court also made comprehensive orders for property settlement, including the payment of a sum by the husband to the wife, the transfer of interests in specific assets, and the retention of other assets by each party. Spousal maintenance was ordered to be paid by the husband to the wife weekly, to be discharged upon the wife's relocation.
Orders
Orders of the court
1.
That the parties have equal shared parental responsibility for B born … 2011 (“the child”).
2.
That the child shall live with the wife.
3.
As and from 2 January 2018 the wife be permitted to relocate the residence of the child from Australia to Country V in Europe but more particularly C Island.
4.
That the child spend time with the husband in Australia as follows:-
a. For a period not less than eight (8) weeks during the European summer holidays;
b. For a period of not less than two (2) weeks during the Christmas holidays provided that in even numbered years the period shall include Christmas Day;
c. Such further and other times as the parties may agree.
5.
That the wife, the husband at his election, or by agreement a member of the wife or husband’s extended family shall accompany the child in transit between Country V and Australia.
6.
That for the purpose of travel to Australia to give effect to paragraph 4, the wife shall book and pay for all airfares for the wife and the child and the husband shall reimburse the wife as to one half of the accompanying parent and child’s airfare costs within twenty one (21) days of receipt of the airfare itinerary and tax invoice evidencing payment.
7.
That the child spend time with the husband in Country V as follows:-
a. Should the husband be visiting Country V for fourteen (14) days or less for all of that period;
b. Should the husband be visiting Country V for more than fourteen (14) days, after the first fourteen (14) days THEN equal time; and
c. Such further and other time as may be agreed.
8.
That if the husband and the wife are in the same location when the husband is spending fourteen (14) days or more block time with the child, unless otherwise agreed between the parties the wife may:-
a. Spend twenty four (24) hours each fourteen (14) days with the child and unless otherwise agreed the time shall be from 9.00 am Wednesday to 9.00 am on the following Thursday commencing on the first Wednesday after the husband has spent fourteen (14) days with the child.
9.
Such further or other time as the parties may agree.
10.
That the parties will:-
a. Communicate by text or email except in the event of an emergency when communication will be by telephone;
b. Keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email addresses and Skype details and will inform the other of any change to any of these details within seven (7) days of any such change;
c. Advise each other of any medical or other emergency involving the child whilst in their separate care.
11.
That each party shall be entitled to obtain copies of the child’s healthcare records and to discuss matters with the child’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure the information can be freely disclosed to each parent.
12.
That each parent shall sign all such documents and do all things necessary to ensure that the child maintains a valid passport with the passport to be retained by the wife.
13.
That the wife will provide to the husband the child’s passport not less than twenty eight (28) days prior to any notified overseas travel and the husband shall return the child’s passport to be held by the wife after the conclusion of travel and immediately upon return.
14.
That upon the wife and child leaving Australia to take up residence in Country V the orders made 14 March 2016 are discharged.
15.
That in full and final settlement of all claims that either party has against the other by way of property settlement pursuant to the provisions of the Family Law Act 1975 (Cth) (as amended)(“the Act”):-
a. That on or before forty five (45) days from the date of this order the husband do pay to the trust account of Darwin Family Law for and on behalf of the wife the sum of TWO HUNDRED AND ONE THOUSAND EIGHT HUNDRED AND FIFTY THREE DOLLARS ($201,853,) (“the settlement sum”);
b. That the husband forthwith transfer to the wife his interest in the Japanese motor vehicle;
c. That the husband retain free from any claim by the wife the following:-
i. All equity, interest and title in D Street, Suburb E NT;
ii. The motor van;
iii. All monies standing to his credit in any bank account, credit union or financial institution;
iv. All partnership benefit and interest in the construction business known as Spengler Partnership;
v. All superannuation member entitlements in Ausfund Superannuation number …;
d. That the wife retain interest in the following:-
i. All monies standing to her credit in any bank account, credit union or financial institution;
ii. Her interest in F Town, Country V;
iii. The bond for the premises at G Street, Suburb H, NT;
e. That should the husband fail to pay the settlement sum either in whole or in part by the due date and should the default continue for fifteen (15) days THEN the husband shall forthwith do all things necessary to list for sale by public auction or private treaty the property situate at D Street, Suburb E, Northern Territory upon such terms and conditions as may be agreed between the parties but in the absence of agreement as may be ordered by this Honourable Court and from the net proceeds of sale the wife is to receive so much of the settlement sum as shall be outstanding and unpaid together with interest at the rate of ten per centum (10 per cent) per annum with the balance if any to be paid to the husband.
16.
That by way of spousal maintenance the husband shall cause to pay to the wife the sum of TWO HUNDRED AND FIFTY DOLLARS ($250) per week PROVIDED that upon the wife’s relocation to Country V the order for spousal maintenance shall be discharged.
17.
That forthwith upon receipt of the settlement sum the wife will place the sum of TWENTY FIVE THOUSAND DOLLARS ($25,000) into an interest bearing account (“the account”) to be used (if required) to ensure the payment of the wife’s obligation to contribute to the costs of travel of the child and the wife as provided for in paragraph 6 herein subject to the following:-
(a) The wife be restrained and an injunction granted restraining her from withdrawing funds from the account for any purpose other than in compliance with paragraph 6;
(b) The wife will provide a copy of the bank statement in respect of the said account to the husband every six (6) months.
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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