THE FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAN & LIANG | [2019] FCCA 2946 |
| Catchwords: FAMILY LAW – Parenting and property – young child – dispute about when overnights should start – short marriage – contributions – earning capacity. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60B(1), 60B(2), 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA (2), 65DAA(3), 75(2),79, 79(2)106A Australian Passports Act 2005 (Cth), s.11 |
| Cases cited: Bilous v Mudaliar (2006) 65 NSWLR |
| Applicant: | MS TRAN |
| Respondent: | MR LIANG |
| File Number: | MLC 6235 of 2017 |
| Judgment of: | Judge Harland |
| Hearing dates: | 15, 16 and 17 July 2019 |
| Date of Last Submission: | 7 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 17 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hall |
| Solicitors for the Applicant: | Robinson Gill Lawyers |
| Counsel for the Respondent: | Mr Thompson |
| Solicitors for the Respondent: | Australian Family Lawyers |
ORDERS
Parenting Orders of the Court
That X born … 2016 (“the child”) live with the wife.
That the wife have sole parental responsibility for the child with respect to education and health provided that the wife consult with the husband about any proposed decisions with respect to major issues concerning education and health and:
(a)notify the husband in writing of any proposed decision;
(b)give the husband fourteen (14) days to respond before a final decision is made, except in the case of an emergency;
(c)take into consideration any views expressed by the husband in respect of such proposed decisions; and
(d)inform the husband in writing of the decision made.
That otherwise the parties are to have equal shared parental responsibility for the long term care and welfare of the child.
Both parties shall ensure that each other is kept informed of:
(a)any medical problems or illnesses suffered by the child while in the other’s care;
(b)any medication that has been prescribed for the child;
(c)any social, school or religious functions which the child is to attend;
(d)the residential address of each party and particulars of the others who may reside with the child; and
(e)any other matter relevant to the child’s welfare.
The wife shall ensure that the husband is listed on all emergency contacts for the child.
That from the date of these Orders until 16 November 2019 the child continue to spend time with the husband in accordance with the interim orders:
(a)from 9.00am until 4.00pm each alternate Saturday commencing on 19 October 2019;
(b)from 9.00am until 4.00pm each alternate Sunday commencing on 27 October 2019; and
(c)from 8.30am until 2.30pm each Monday and Wednesday.
That from 16 November 2019 until the end of Term 1 of 2021, (noting the…
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- TRAN & LIANG [2019] FCCA 2946
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- [2019] FCCA 2946
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CaseChat Overview and Summary
The court was tasked with determining the specific time arrangements for the child to spend with the husband, including the gradual introduction of overnight stays and the allocation of time during school terms, holidays, and special occasions. Additionally, the court had to address the division of the husband's superannuation interest, specifically the wife's entitlement to a portion of it, and to make orders for the division of other property. The court also needed to consider the implications of these orders on the parties' respective earning capacities and contributions to the marriage.
In its reasoning, the court established a phased approach to the child's time with the husband, commencing with day visits and progressively introducing overnight stays. This approach was designed to allow the child to adjust gradually. The court also made detailed provisions for communication and decision-making regarding the child's education and health, granting the wife sole parental responsibility in these areas but requiring consultation with the husband. Regarding superannuation, the court ordered a split of the husband's superannuation interest, specifying a base amount for the wife and outlining the mechanism for its payment. The court also declared each party to be the sole owner of certain personal property and assets not otherwise dealt with in the orders.
Orders
Orders of the court
Parenting Orders of the Court
1.
That X born … 2016 (“the child”) live with the wife.
2.
That the wife have sole parental responsibility for the child with respect to education and health provided that the wife consult with the husband about any proposed decisions with respect to major issues concerning education and health and:
(a) notify the husband in writing of any proposed decision;
(b) give the husband fourteen (14) days to respond before a final decision is made, except in the case of an emergency;
(c) take into consideration any views expressed by the husband in respect of such proposed decisions; and
(d) inform the husband in writing of the decision made.
3.
That otherwise the parties are to have equal shared parental responsibility for the long term care and welfare of the child.
4.
Both parties shall ensure that each other is kept informed of:
(a) any medical problems or illnesses suffered by the child while in the other’s care;
(b) any medication that has been prescribed for the child;
(c) any social, school or religious functions which the child is to attend;
(d) the residential address of each party and particulars of the others who may reside with the child; and
(e) any other matter relevant to the child’s welfare.
5.
The wife shall ensure that the husband is listed on all emergency contacts for the child.
6.
That from the date of these Orders until 16 November 2019 the child continue to spend time with the husband in accordance with the interim orders:
(a) from 9.00am until 4.00pm each alternate Saturday commencing on 19 October 2019;
(b) from 9.00am until 4.00pm each alternate Sunday commencing on 27 October 2019; and
(c) from 8.30am until 2.30pm each Monday and Wednesday.
7.
That from 16 November 2019 until the end of Term 1 of 2021, (noting the time continues during school terms and holidays) the child spend time with the husband:
(a) In week 1:
(i) each Monday from 8:30am to 2:30pm;
(ii) each Wednesday from 8:30am until Thursday 2:30pm; and
(iii) each Saturday from 9:00am to 4:00pm.
(b) In week 2:
(i) each Monday from 8:30am to 2:30pm;
(ii) each Wednesday from 8:30am until Thursday 2:30pm; and
(iii) each Sunday from 9:00am to 4:00pm.
8.
That from Term 2 of 2021 during school terms, and each school term thereafter:
(a) From 3:30pm or afterschool on Friday until 4:00pm on Sunday in week 1; and
(b) From 3.30pm or after school on Wednesday to before school on Thursday in week 2.
9.
During school term holidays in 2021 the two week cycle continue but with week 1 to extend to Monday at 4:00pm.
10.
During the long summer holidays in 2020 and each even numbered year thereafter:
(a) In week 1 from 9:00am Monday until 4:00pm Thursday; and
(b) In week 2 from 9:00am Wednesday until 4:00pm Thursday.
11.
During the long summer holidays in 2021 and each odd numbered year thereafter:
(a) In week 1 from 9:00am Wednesday until 4:00pm Thursday.
(b) In week 2 from 9:00am Monday until 4:00pm Thursday; and
Spend time with Orders by consent
12.
The child spend time with the father on the following special occasions in 2019 and 2020:
(a) From 10:00am until 4:00pm on 24 December in 2019;
(b) From 10:00am until 4:00pm on 25 December in 2020;
(c) On X's birthday:
(i) If the birthday falls on a weekday when the child is not with the husband, from 5:30pm until 7:30pm;
(ii) If the birthday falls on a weekend when the child is not with the husband, from 2:00pm until 6:00pm.
(d) For such further or other periods as may be mutually agreed.
13.
The child spend time with the father on the following special occasions from 2021:
(a) On X' s birthday:
(i) from 4:00pm on her birthday until 4:00pm the following day in the year 2020 and each alternate year thereafter; and
(ii) from 4:00pm on the day preceding her birthday until 4pm on her birthday in the year 2021 and each alternate year thereafter.
(b) From 4:00pm on 25 December until 4:00pm on 26 December in 2019 and each alternate year thereafter.
(c) From 4:00pm on 24 December until 4:00pm on 25 December in 2020 and each alternate year thereafter.
(d) On Father's Day from 10:00am until 5:00pm.
(e) For such further or other periods as may be mutually agreed.
14.
That the father' s time with the child be suspended:
(a) On Mother's Day from 10:00am until 5:00pm.
(b) From 4:00pm on 24 December 2019 until 4:00pm 25 December 2019 and each alternate year thereafter.
(c) From 4:00pm on 25 December 2020 until 4:00pm 26 December 2020 and each alternate year thereafter.
(d) On the child 's birthday:
(i) from 4:00pm on her birthday until 4:00pm the following day in the year 2021 and each alternate year thereafter; and
(ii) from 4:00pm on the day preceding her birthday until 4:00pm on her birthday in the year 2020 and each alternate year thereafter.
Travel
15.
Each of the parties do all acts and things and sign all documents as may be necessary for the Department of Foreign Affairs and Trade to issue a passport to the child X born … 2016 ("the child'") at their joint expense.
16.
The passport be delivered to the mother and remain in possession of the mother at all times, subject to the orders herein.
17.
Both parties do all acts and things necessary to renew the child's passport as and when required at their joint expense.
18.
In the event that either parent intends to travel with the child interstate, the parent who intends to travel, shall provide written notice upon booking the travel of the dates to the other parent together with details of the destination, mode of travel and contact details.
19.
In the event that either parent intends to travel with the child overseas they shall provide the other parent:
(a) No less than 42 days written notice of their intention to do so with proposed dates and destination.
(b) No later than fourteen (14) days prior to departure, the travelling parent shall provide the other parent the following:
(i) a full itinerary including the destination, mode to travel, flight or vessel details and copies of return airline/cruise ship tickets; and
(ii) accommodation details and contact details for the child for the duration of the holiday.
20.
That no more than once per year the parent intending to travel for such time interstate or overseas travel can be extended to a period of 4 days over term school holidays, and 7 days for long summer holidays, or as otherwise ordered by the Court to facilitate travel with the mother and father.
21.
So far as practicable, the occasions on which the parties travel with the child are to coincide with school holidays.
22.
That in the event that the travelling time reduces the non-travelling parties school time there will be a corresponding amount of make-up time with the non-travelling party of any additional time taken during such period of school holidays.
Superannuation splitting Order
23.
That paragraphs 24 to 30 of these orders are binding on the trustee of the Super Fund A subject to the Family Law Act 1975 and the Superannuation Industry (Supervision) Act 1993 ("the fund" ).
24.
That the base amount allocated to the wife in these proceedings out of the interest of the husband in these proceedings in the fund (he being member number … of the Fund) is $50,000 ("the base amount").
25.
That pursuant to Section 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the said husband in the fund, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 ("the Regulations") using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
26.
That order 25 has effect from the operative time.
27.
The operative time for the purposes of order 25 is four business days after the date of service of a certified court sealed copy of these orders upon the trustee of the fund.
28.
That there be liberty to apply to each party and the trustee in relation to the implementation of the orders affecting the husband’s superannuation interest in the fund.
29.
That until such time as the superannuation split to the wife pursuant to these orders can be rolled into a separate account to the wife:
(a) the husband shall provide to the wife no less than 28 days' notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or part his entitlement in the fund;
(b) The husband shall direct and authorise the trustee of the fund to communicate with the wife and/or any person authorised by her in writing;
(i) to answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the fund; and
(ii) to provide to the wife and/or her authorised representative a copy of any notice of any application or request by the husband which seeks release of entitlements in the fund in so far as that release may effect the wife's entitlements in the fund pursuant to these orders.
(c) The husband by himself his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the wife, her executors, administrators or nominees from receiving the benefits in the fund to which she is entitled pursuant to these orders, including but not limited to executing any death nomination in favour of any person.
30.
In the event that the superannuation split to the wife pursuant to these orders can be rolled into a separate account to the wife each of the parties hereto shall each do all such acts and things and execute all documents as may be necessary to facilitate and to implement the rollover.
Property
31.
That within 28 days the parties submit a minute of Order to Chambers reflecting paragraph 256 of these reasons.
32.
That pursuant to Section 78 of the Family Law Act that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a) all items of furniture, furnishings, personalty, chattels and jewellery;
(b) all monies (whether held in cash or in deposit with any financial institution);
(c) any motor vehicle;
(d) all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control or each or in which either has an interest which are not otherwise dealt with in these orders.
33.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
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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