FAMILY COURT OF AUSTRALIA
| THURAL & THURAL | [2008] FamCA 299 |
| FAMILY LAW - CHILDREN - final parenting orders - relocation from Melbourne to New South Wales - disabled child - husband’s preparedness and capacity to provide practical support, assistance or respite care - relevance of husband’s bipolar diagnosis - relocation allowed. FAMILY LAW - PROPERTY - final orders - pre-marriage financial contribution - post-separation contributions. FAMILY LAW - SPOUSAL MAINTENANCE - differences in earning capacities - needs. |
| Family Law Act 1975 (Cth) ss 4, 60B(1), 60CC(1), 60CC(3), 60CC(4) and (4A) 61DA, 65DAA(1),(2) ,(3), (5), 68F(2), 72, 74, 75(2), (3) 79(4) Family Law Amendment (Shared Parental responsibility) Act 2006 |
| A & A: Relocation Approach (2000) FLC 93-035 AMS v AIF; AIF v AMS (1999) FLC 92-852 Paskandy v Paskandy (1999) FLC 92-878 U & U (2002) FLC 93-112 Bolitho & Cohen (2005) FLC 93-224 Godfrey & Sanders [2007] FamCA 102 M & S (2007) FLC 93-313 Bryans & Franks-Bryans [2007] FamCA 377 Taylor & Barker (2007) FLC 93-345 Goode & Goode (2006) FLC 93-286 Bevan & Bevan (1995) FLC 92-600 Mitchell & Mitchell (1995) FLC 92-601 Goldrick & Goldrick [2007] FamCA 1260 Sampson & Hartnett [2007] FamCA 1365 |
| HUSBAND: | Mr Thural |
| WIFE: | Mrs Thural |
| FILE NUMBER: | MLC | 2464 | of | 2007 |
| DATE DELIVERED: | 1 May, 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 3, 4, 5 and 6 December, 2007 |
REPRESENTATION
| COUNSEL FOR THE HUSBAND: | Ms. Smallwood |
| SOLICITOR FOR THE HUSBAND: | Pearsons |
| COUNSEL FOR THE WIFE: | Ms. Benjamin |
| SOLICITOR FOR THE WIFE: | JH Legal Pty. Ltd. |
Orders
Parenting
That the wife be at liberty to relocate the residence of the children of the marriage J born … July, 2000 and M born … April, 2004 (“the children”) to the regional New South Wales area, on or after 3 January, 2008.
That the children live with the wife.
That the husband and wife have equal shared parental responsibility for the children.
That J spend time with the husband as follows :
(a)for the whole of the second school term holiday in each year;
(b)for one half of the first and third school term holidays in each year;
(c)from 10:00 am. on Christmas Day in 2007 until 6:00 pm. on 2 January, 2008;
(d)from 2008/2009, for one half of the summer school holidays at times to be agreed and failing agreement :
(i)the second half in 2008/2009; and
(ii)the first half in 2009/2010;
(e)for one extended weekend in regional New South Wales in each school term, and the husband be at liberty to arrange for J not to attend school on either Friday or Monday, upon 14 days notice to the wife;
(f)at such other times as are agreed between the parties.
That the time J spends with the husband pursuant to paragraphs (4)(a), (b), (c) and (d) hereof be in Melbourne or such other place as the husband determines PROVIDED THAT the obligation of the wife to contribute to a child’s fares (pursuant to paragraph (17) hereof)…
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CaseChat Overview and Summary
The legal issues before the court included whether to permit the relocation of the children, considering the needs of a disabled child and the husband's capacity to provide practical support, assistance, or respite care, particularly in light of his bipolar diagnosis. The court was also required to determine the division of property, including pre-marriage and post-separation contributions, and to assess spousal maintenance based on differing earning capacities and needs.
In relation to parenting, the court allowed the wife to relocate the children to regional New South Wales, finding that the husband's preparedness and capacity to provide support, despite his bipolar diagnosis, did not preclude the relocation. The court made detailed orders regarding the children's living arrangements, parental responsibility, and the time each child would spend with the husband, including provisions for communication and information sharing between the parents. For property, the court ordered the sale of the parties' real property, with the proceeds to be divided with a specific percentage to the wife and a fixed sum to her, followed by the balance to the husband. The court also made orders for the division of superannuation and the allocation of motor vehicles. Finally, the court ordered the husband to pay a lump sum for spousal maintenance to the wife.
Orders
Orders of the court
Parenting
1.
That the wife be at liberty to relocate the residence of the children of the marriage J born … July, 2000 and M born … April, 2004 (“the children”) to the regional New South Wales area, on or after 3 January, 2008.
2.
That the children live with the wife.
3.
That the husband and wife have equal shared parental responsibility for the children.
4.
That J spend time with the husband as follows :
(a) for the whole of the second school term holiday in each year;
(b) for one half of the first and third school term holidays in each year;
(c) from 10:00 am. on Christmas Day in 2007 until 6:00 pm. on 2 January, 2008;
(d) from 2008/2009, for one half of the summer school holidays at times to be agreed and failing agreement :
(i) the second half in 2008/2009; and
(ii) the first half in 2009/2010;
(e) for one extended weekend in regional New South Wales in each school term, and the husband be at liberty to arrange for J not to attend school on either Friday or Monday, upon 14 days notice to the wife;
(f) at such other times as are agreed between the parties.
5.
That the time J spends with the husband pursuant to paragraphs (4)(a), (b), (c) and (d) hereof be in Melbourne or such other place as the husband determines PROVIDED THAT the obligation of the wife to contribute to a child’s fares (pursuant to paragraph (17) hereof) shall only apply if the child is to travel to Melbourne.
6.
That the husband spend time with M as follows :
(a) from 10:00 am. to 6:00 pm. on Christmas Day in 2007;
(b) from 10:00 am. to 6:00 pm. on 29 December, 2007;
(c) from 10:00 am. to 6:00 pm. on 2 January, 2008;
(d) for no less than three days, from 10:00 am. to 6:00 pm. on each day, during a period that J spends time with the husband pursuant to paragraphs (4)(a), (b) and (d) hereof;
(e) from 10:00 am. to 6:00 pm. on one day in each period of time the husband has with J pursuant to paragraph (4)(e) hereof, and failing agreement, on the Saturday of the extended weekend;
(f) at such other times as are agreed.
7.
That the time M spends with the husband pursuant to paragraph (6)(a), (b), (c) and (d) hereof be in Melbourne, unless the wife agrees otherwise.
8.
That a reference to time spent in Melbourne in these orders does not preclude :
(a) the husband taking the children or either of them to his parents’ farm property; or
(b) the husband taking the children to another destination a reasonable distance from Melbourne PROVIDED THAT such destination is one which could normally be undertaken as a day trip from Melbourne (that is, one could arrive and return within a day).
9.
That as soon as practicable after relocation to regional New South Wales, the wife do all things reasonably necessary to facilitate the husband and children in communicating (to the extent commensurate with their respective abilities) by telephone, email and webcam.
10.
That the husband and the wife each keep the other informed of his or her residential address, telephone number and email address.
11.
That as soon as practicable the wife advise the husband of the school in which she proposes to enrol J in regional New South Wales and authorise the principal of that school to discuss J’s enrolment, education and progress with the husband and to provide to the husband, at his expense (if any) :
(a) a copy of each school report for J;
(b) a copy of each school photo order form for J; and
(c) such other information as is routinely made available to parents.
12.
That as soon as practicable the wife advise the husband of the school in which she proposes to enrol M in regional New South Wales and authorise the principal of that school to discuss M’s enrolment, education and progress with the husband and to provide to the husband, at his expense (if any):
(a) a copy of each school report for M
(b) a copy of each school photo order form for M; and
(c) such other information as is routinely made available to parents.
13.
That the husband be at liberty to attend the school or schools attended by the children from time to time for events, activities and functions routinely attended by parents.
14.
That each of the parties keep the other informed of any significant illness or accident experienced by a child when in his or her care and as soon as practicable provide the name and address of each relevant treating doctor or like professional to the other and authorise him or her to discuss with the other the child’s symptoms, treatment and prognosis.
15.
That the wife keep the husband advised of each specialist medical practitioner consulted by M and authorise that medical practitioner to discuss M’s presentation, treatment and prognosis with him.
16.
That in March, June, September and December 2008 the husband provide to the wife a written report from his then treating psychiatrist confirming that, in the opinion of the psychiatrist, the husband’s mood has remained stable, that there has been no evidence of any hypomanic symptoms or of depression and the husband remains compliant with medications prescribed by that psychiatrist.
17.
That the costs of the children’s travel between regional New South Wales and Melbourne be shared equally between the husband and the wife and that each pay his or her own costs associated with such travel.
18.
That the husband pay accommodation costs and all other costs associated with time spent with the children.
Property
19.
That the parties forthwith do all things reasonably necessary to sell the real property situate at and known as C in the State of Victoria (“the real property”) altogether out of court and that the proceeds of sale be applied as follows :
(a) First, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding on the real property.
(b) Second, to pay the costs of discharging the mortgage affecting the real property (the court noting the evidence of the husband that no principal or interest is or will be due and payable); and
(c) Third, the balance to be divided in the proportions of :
(i) 60% to the wife;
(ii) $12,000 to the wife; and
(iii) the balance to the husband.
20.
That in the event any principal or interest is required to be paid to discharge the mortgage over the real property, then such sum be deducted from the sum otherwise due to the husband pursuant to paragraph (19)(c)(iii) hereof.
21.
That by way of consequential arrangements to be made for the purpose of effecting the sale pursuant to paragraph (19) hereof, and in the absence of agreement to the contrary between the parties :
(a) The listing price for the real property shall be as agreed between the parties and if there is no agreement, shall be as advised by a valuer (who is also a practising real estate agent) appointed by the President of the Victorian Division of the Australian Property Institute.
(b) The real property shall be listed for sale by auction or private treaty by an agent agreed to by the parties and if there is no agreement, with the agent nominated to advise the value pursuant to the preceding sub-paragraph, and if the parties are unable to agree as to whether the property should be listed for sale by private treaty or by auction, the agent so nominated shall determine the issue.
(c) In the event the real property has not been sold within four months of this date the husband and wife shall do all such acts and sign all such documents to procure a sale by public auction of the real property without reserve, such auction to take place within a further period of two months by an agent to be agreed and failing agreement, to be nominated by the wife.
(d) The husband shall have the conduct of the sale but shall keep the wife informed of all relevant matters and the wife (by herself or through her solicitors) be at liberty to speak with the agent and be kept informed in respect of all arrangements, offers and other relevant matters.
22.
That pending the completion of the sale :
(a) The wife have the sole right to occupy the real property until she leaves for regional New South Wales and during such right of occupation :
(i) the wife pay contents insurance and utilities; and
(ii) the parties be equally responsible for the payment of rates and house insurance.
(b) That once the wife has left for regional New South Wales the parties be equally responsible for the payment of rates, insurance, and other outgoings as they fall due.
(c) The parties hold their respective interests in the real property upon trust pursuant to these orders.
(d) Neither party encumber the real property without the consent in writing of the other party.
23.
That liberty be reserved to either party to apply with respect to the terms and conditions of the sale.
24.
That paragraphs (25) to (28) inclusive of these orders are binding on the trustee of the Family Superannuation Fund (“the superannuation fund”).
25.
That the base amount to be allocated to the wife out of the interest of the husband in the superannuation fund is such sum which, when added to the then current interest of the wife in the superannuation fund, will equal one-half of the total superannuation fund balance as at the operative date.
26.
That paragraph (25) has effect from the operative date.
27.
That the operative date for the purpose of these orders is the fourth business day after the day on which a sealed copy of these orders is served on the trustee of the superannuation fund.
28.
That the wife shall within fourteen days of becoming entitled to receive a superannuation benefit from the superannuation fund, provide to the superannuation fund all such forms as shall be necessary to enable it to determine the nature and quantum of her entitlement and any other related information it may reasonably require.
29.
That there be liberty to apply to each party and the trustee in relation to the implementation of the orders affecting the superannuation fund.
30.
That the husband by himself, his agents and servants be and is hereby restrained from doing any act which will prevent the wife, her heirs, executors, administrators or nominees from receiving the benefit of the superannuation fund to which the wife is entitled pursuant to these orders.
31.
That the husband forthwith do all things and sign all necessary documents as required to transfer to the wife the 2000 Commodore station wagon which is in the wife’s possession.
32.
That the husband retain for his sole use and benefit the 1992 EB Falcon motor vehicle currently in his possession.
33.
That unless otherwise specified in these orders :
(a) each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof; insurance policies are deemed to be in the possession of the beneficiary thereof; superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for the payment out of such entitlements; and the chattels in the real property are deemed to be in the possession of the wife ;
(b) 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.
34.
That the husband pay to the wife spousal maintenance by one lump sum payment of $12,000 (representing two years maintenance at $125 per week, discounted by 7.5% and rounded) and such sum be paid as provided in paragraph (19)(c)(ii) hereof.
35.
That the period in which a party may file a Notice of Appeal is extended to one month after the day on which reasons for judgment are published.
36.
That all extant applications be otherwise dismissed.
37.
That these proceedings be removed from the List of matters awaiting finalisation.
38.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
39.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
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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