Treloar & Treloar (No. 3)

[2007] FamCA 1638

FAMILY COURT OF AUSTRALIA

TRELOAR & TRELOAR (NO. 3) [2007] FamCA 1638

FAMILY LAW – CHILDREN – ADDENDUM TO JUDGMENT - Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Treloar

RESPONDENT: Mr Treloar

FILE NUMBER: ADF 1860 of 2005

DATE DELIVERED: 21 September 2007

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 21 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross

SOLICITOR FOR THE APPLICANT: Cardone & Associates

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Barbara Rowe

ORDER BY CONSENT

1. That during the Christmas/New Year school holiday period commencing in 2007 and each alternate year thereafter the children [a son L] … born … February 1995 and [a daughter P] … born … February 2000 shall live with:-

   (a)The wife for the first half of the school holiday period commencing from 4:00pm on the first Monday immediately following the end of the school year and concluding at 4:00pm on the fourth Monday of the school holidays.

   (b)The husband for the second half of the school holiday period commencing from 4:00pm on the fourth Monday of the school holidays to 4:00pm on the first Monday of school term 1.

2. That during the Christmas/New Year school holiday period commencing in 2008 and each alternate year thereafter the children shall live with:-

   (a)The husband for the first half of the school holiday period commencing from 4:00pm on the first Monday immediately following the end of the school year and concluding at 4:00pm on the fourth Monday of the school holidays.

   (b)The wife for the second half of the school holiday period commencing from 4:00pm on the fourth Monday of the school holidays to 4:00pm on the first Monday of school term 1.

3. That the parent with whom the children are living on Christmas day in each year do facilitate telephone communication between the children and the other parent at 2:00pm on Christmas day.

4. UPON NOTING that the child P’s birthday is on … February and the child L’s birthday is on … February:-

   (a)If both of the children’s birthdays fall within the week that the children live with the husband, the children shall spend time with the wife from 3:00pm to 8:30pm on either … or … February as agreed.

   (b)If both of the children’s birthdays fall within the week that the children live with the wife, the children shall spend time with the husband from 3:10pm to 8:30pm on either … or … February as agreed.

5. If the children are living with the wife on Father’s Day, the handover for the purpose of paragraph 3 of the Order dated 16 August 2007 shall be brought forward to 10:00am on Fathers Day.

6. If the children are living with the husband on Mother’s Day, the handover for the purpose of paragraph 3 of the Order dated 16 August 2007 shall be brought forward to 10:00am on Mother’s Day.

7. That the parent with whom the children are living on special occasions including the children’s birthdays and the birthdays of each parent, shall permit and facilitate telephone communication between the children and the other parent on the special occasions.

8. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

9. That the wife pay to the husband’s solicitor on behalf of the husband the sum of $350.00 by way of costs, such sum to be paid at the same time as the property settlement as per paragraph 10 of my orders made on 16 August 2007.

IT IS FURTHER ORDERED

1. That pursuant to Section 90MT(1)(b) of the Family Law Act 1975 (as Amended) whenever a splittable payment becomes payable out of the interest held by the husband in The Defence Force Retirement and Death Benefits (DFRDB) Scheme, The Defence Force Retirement and Death Benefits (DFRDB) Authority (“The Trustee”) shall:

   (a)Pay 12.5% of the splittable payment to the wife.

   (b)Make a corresponding reduction in the entitlement of the husband to the splittable payment but for this order.

2. The operative time for the order in paragraph (10) hereof is the beginning of the fourth business day after the day a sealed copy of these orders is served upon The Trustee.

3. That all applications be dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Treloar & Treloar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1860 of 2005

MS TRELOAR

Applicant

And

MR TRELOAR  

Respondent

ADDENDUM

REASONS FOR JUDGMENT

1. On 16 August 2007 I delivered my reasons for judgment in this matter but I was not able to make all of the final orders proposed.

2. Dealing with the topics in turn, firstly I was not able to make final orders in relation to the Husband’s DFRDB pension because procedural fairness needed to be afforded to the trustee of the relevant superannuation scheme.  I now have an affidavit before me that satisfies me that the trustee has been afforded procedural fairness.

3. The relevant paragraphs of the proposed order relating to the DFRDB pension are 20 and 21.  Ms Rowe has pointed out that in relation to paragraph 20(a) it is not necessary to provide for a payment to go to any person other than the wife given the nature of the entitlement.  I agree, as does Ms Cardone, and thus I will make the order without reference to the administrators, executors, beneficiaries, heirs or assigns of the wife.

4. The second topic was what was to happen in relation to the children during each Christmas school holiday period, and on special occasions.  I am pleased to say that the parties have now reached agreement in relation to those matters and I have before me consent minutes of order which deal with those issues and I propose to make those orders today by consent. 

5. Ms Cardone has also pointed out the need to amend paragraph 17 of the order of 16/8/07 due to an error which can be corrected under the slip rule.  There was a reference in that paragraph to paragraph 13 when in fact the correct reference is to paragraph 10.

I certify that the preceding 5 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland

Associate

21 September 2007