TURNER & WILLIS

[2017] FamCA 740

FAMILY COURT OF AUSTRALIA

TURNER & WILLIS [2017] FamCA 740

FAMILY LAW – PRACTICE AND PROCEDURE – leave granted pursuant to section 44(6) of the Family Law Act 1975.

FAMILY LAW – PROPERTY – final orders – where the wife received an adjustment of approximately 75 per cent of the net non-superannuation assets.

FAMILY LAW – CHILDREN – final orders – equal shared parental responsibility – children live with the mother – the children spend time and communicate with the father.

Family Law Act 1975 (Cth) ss 44(5), 44(6), 90ST.

APPLICANT:

Ms Turner

RESPONDENT: Mr Willis

FILE NUMBER: MLC 5069 of 2017

DATE DELIVERED: 5 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 5 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Clark

SOLICITOR FOR THE APPLICANT: Perry Weston Lawyers

COUNSEL FOR THE RESPONDENT: Ms Grant

SOLICITOR FOR THE RESPONDENT: Butler McIntyre & Butler

Orders

IT IS ORDERED THAT:

1. The parties be granted leave to proceed in filing their Application for Consent Orders out of time pursuant to Section 44(6) of the Family Law Act (Cth) 1975.

BY CONSENT IT IS ORDERED:

Parenting Orders

1. The Applicant mother and the Respondent father have equal shared parental responsibility for the children B born … 2011 and C born … 2013.

2. The children live with the mother.

3. The children spend time and communicate with the father as follows:

   (a)By video call (or telephone call if video call service not available) each Wednesday between 5:30 pm and 6:30 pm, with the father to initiate the call to the mother's mobile telephone (…) and the mother to ensure that the children are available to receive the father's call.

   (b)By video call (or telephone call if video call service not available) each Sunday evening between 5:30 pm and 6:30 pm, with the father to initiate the call to the mother's mobile telephone (…), and such call to take place if nominated by the father by text message to the mother no later than the preceding Thursday, and the mother to ensure that the children are available to receive the father's call.

   (c)In the State of Victoria at times to be agreed between the parties in writing (by SMS text message) and for this purpose the father shall provide 21 days' notice in writing to the mother of his intention to travel to Victoria to spend time with the children and the mother will respond within 48 hours of receiving his communication whether or not the time nominated by the father is agreed.

   (d)In the State of Tasmania, subject to the father having leave from his employment, as follows:

   (i)During the Term 1 and Term 3 Victorian gazetted school holiday periods as follows:

   (A)in 2017, for a block of 3 consecutive nights to be agreed between the parties in writing (by email or SMS message);

   (B)in 2018, for a block of 5 nights to be agreed between the parties in writing (by email or SMS text message);

   (C)in 2019 and each year thereafter, for half of the school holiday period by agreed in writing (by email or SMS text message), and failing agreement the first half thereof.

   (ii)In 2018, for a block of 5 nights commencing on 23 December.

   (iii)In each odd numbered year commencing in 2020, for a block of 8 nights commencing on 23 December.

   (e)Such further or other times as may be agreed by the parties (by email or SMS text message).

4. For the purpose of the children's time spent with the father in Melbourne, changeover shall occur at the residence of the mother unless otherwise agreed between the parties in writing (by email or SMS text message).

5. For the purpose of the children's time spent with the father in the State of Tasmania:

   (a)All changeover shall occur at the domestic terminal of Melbourne Airport (Tullamarine);

   (b)The father shall meet the cost of the children's return airfares for the purpose of time spent pursuant to order 3(d)(i) herein;

   (c)The mother shall meet the cost of the children's return airfares for the purpose of time spent pursuant to order 3(d)(ii) and 3(d)(iii) herein; and

   (d)The father shall accompany the children on all flights between Melbourne and Tasmania until the parties jointly agree that the children are sufficiently mature to travel as unaccompanied minors (which will not be before the child C attains the age of eight years). 

6. The mother is hereby authorised to obtain Australian passports for the children and for this purpose:

   (a)Both parties shall do all things necessary and sign all necessary documents to enable the mother to obtain passports for the children; and

   (b)The mother shall be responsible for meeting all cost associated with obtaining passports for the children.

7. Once issued, the children's passports shall be held by the mother's solicitors, Perry Weston Lawyers, and the said passports shall not be released to either parent without the consent in writing of both parties and/or an Order of the Court permitting the release of the passport to either parent for the purpose of the children travelling overseas.

8. The mother and the father shall be permitted to travel outside of the Commonwealth of Australia with the children subject to the following:

   (a)The travelling parent providing 45 days' notice in writing to the father of her intention to travel with the children including:

   (i)the proposed dates of departure and return; and

   (ii)a full itinerary for the proposed travel including details of how the children and the travelling parent can be contacted during the travel;

   (iii)in the event that it is the mother travelling overseas with the children, arrangements for the children's communication with the father continue pursuant to orders 3(a) and 3(b) herein;

   (b)In the event that it is the father travelling overseas with the children, the duration of the travel shall not exceed his time as specifically referred to in order 3(d) herein unless agreed between the parties in writing, and the father will facilitate telephone or electronic communication between the children and the mother each third day at times agreed between the parties prior to departure.

   (c)By no later than 14 days prior to the date for departure, the travelling parent shall:

   (i)pay a bond of $5,000 into the Trust Account of the mother's  solicitors, Perry Weston Lawyers or such other account as may be agreed between the parties in writing (by email or SMS text message), such bond to be returned to the travelling parent within seven days of the children's return to the Commonwealth of Australia, and in the event the children are not returned to the Commonwealth of Australia within 72 hours of the proposed return date, the non-travelling is at liberty to apply such funds towards the return of the children to the Commonwealth of Australia as they see fit; and

   (ii)provide documentary evidence of the child’s return air fares.

9. In the event that the mother travels overseas with the children, the proposed period of travel shall be of no greater than 28 days duration and shall not coincide with the children's time spent with the father pursuant to these Orders.

10. Each party shall advise the other parent in writing in the event of any change to their residential address, contact telephone number(s) and/or email address within 72 hours of such change.

11. Upon the children commencing schooling, the father is hereby authorised to obtain from the children's school all notices, newsletters, reports and written information usually provided to parents, at his expense.

12. Each party shall notify the other parent as soon as practicable in the event of any illness or injury affecting the children (or either of them).

14.      Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Financial Orders

15.      Within 14 days of the date of these Orders, the funds held in the trust account of the firm D Lawyers shall be applied as follows:

(a)       The interest accruing on the funds held with D Lawyers be divided equally between the parties; and

(b)       The balance then remaining (being the principal sum invested) be divided as follows:

(i)        75 per cent to the mother; and

(ii)      25 per cent to the father.

16. Pursuant to Section 90MT(1)(a) of the Family Law Act (1975) whenever E Superannuation Pty Limited (“the Trustee”) of E Superannuation Trust (“the Fund”) make a splittable payment from the interest held by the Respondent, Mr Willis, Member Number … in the Fund the Trustee shall:

(a) Pay to the Applicant or her administrators or executors and beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations (2001);  and

(b)       Make a corresponding reduction in the entitlement that the Respondent would have had in the fund but for these Orders.

17.      The base amount allocated to the Applicant out of the interest held by the Respondent in E Superannuation Trust is $14,986.

18.      The following order has effect from the operative time and the operative time of these Orders is five (5) days after the date of this Order.

19.      The trustee of the fund shall do all such acts and things and sign all such documents as may be necessary, such that the Trustee in accordance with the obligations set out in the Family Law Act (1975) and the Family Law (Superannuation) Regulations (2001) can calculate the entitlements of and make payments to the Wife in accordance with paragraph 16 of these Orders.

20.      That having been accorded procedural fairness in relation to the making of this Order the Order binds the Trustee of E Superannuation Trust.

21.      Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

(a)       Each party 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. 

(b)       Monies standing to the credit of the parties in any joint bank account is to be divided equally between the parties;

(c)       Insurance policies remain the sole property of the owner named thereon;

(d)       Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

(e)       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;

(f)       Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

THE COURT NOTES:

A. Pursuant to Section 90ST of the Family Law Act 1975, the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turner & Willis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5096 of 2017

Ms Turner

Applicant

And

Mr Willis

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Turner & Willis comes before me today in a Judicial Duty List. The application comes as a result of the application for consent orders filed by the applicant on 25 May 2017. That application seeks that orders in relation to both parenting and property matters be made by consent. The application is one made out of time, and accordingly the parties come before the court today seeking leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”).

2. The background to the matter is as follows.  The applicant is Ms Turner.  She is aged 29 years and is engaged in employment in retail. 

3. The respondent is Mr Willis.  He is aged 35 years, and he is employed in administration. 

4. These parties commenced cohabitation in 2010 and separated in January of 2015.  There are two children of the relationship, B, who is aged almost six years, and C, who is aged four years. 

5. The application for leave is supported by two affidavits, one of the applicant sworn 3 August 2017 and filed that day, and an affidavit of the respondent sworn 7 August 2017 and filed 8 August 2017.  Both affidavits confirm that the parties have been engaged in extensive and lengthy negotiations, particularly around parenting issues.  Those negotiations have been protracted because of the ages of the children, the need to ensure that the arrangements for the children to spend time with their father are appropriate to their ages and stage of development particularly given that the mother has relocated the children to Victoria whilst the father remains in Tasmania.

6. Those negotiations have also been complicated by the fact that the mother has re-partnered, and her partner comes from Europe.  That has given rise to the need for the parties to consider the question of overseas travel for the children and how that can be managed and how there can be safeguards in place to ensure the safe return of the children in the event of them undertaking such overseas travel.

7. I am also informed through those affidavits that there would be considerable hardship visited upon both parties were leave not granted.  The assets available for division are extremely modest, being the proceeds of sale of the former matrimonial home.  Those sale proceeds are currently held on trust for the parties, with neither party able to access them absent agreement or Court order. 

8. Section 44(5) of the Act provides that a party to a de facto relationship may apply for orders under the Act for the alteration of property interests only if the application is made within the period of two years after the end of the de facto relationship. That is what is called the standard application period. Section 44(6) of the Act provides that the court may grant the party leave after the end of the standard application period if the court is satisfied that hardship would be caused to the parties or a child if leave were not granted.

9. The Court is required to consider the reasons for any delay in making an application, the prejudice to the other party, and the basis of any prima facie case.  None of those matters are particularly relevant in the current circumstances, given that the parties seek orders by consent and seek the leave of the court to have those orders made. 

10. Hardship is not simply a matter of financial hardship.  Hardship may also be the fact the parties own properties together, that they no longer live together, and it is no longer appropriate that they own property together.  Hardship can also simply be a matter that the parties want to bring to and end their financial relationship.  That is without the grant of leave by the Court, they will not be able to do so.

11. The facts as presented in this matter support the granting of leave. I am satisfied that there would be hardship to both parties were leave not granted as they would be unable to access their modest pool of assets. Further, without leave each would be deprived the opportunity for their superannuation to be adjusted so as to take into account their contributions, and the future needs of the parties, particularly the applicant, given that she has the primary care for the two young children of the relationship. Accordingly, I grant leave pursuant to s 44(6) of the Act.

12. Turning, then, to the proposed orders, having heard submissions and considering the material filed, I am satisfied that the proposed parenting orders are appropriate and in the children’s best interests.  Orders will be made in those terms. 

13. As to the property matters, I am told that the pool of assets is approximately $138,000, being the proceeds of sale of the former matrimonial home, which is held on trust, and is an amount of approximately $41,000 together with accrued superannuation entitlements of approximately $97,000.

14. The adjustment of the non-superannuation assets results in an adjustment in favour of the wife of approximately 75 per cent of the pool.  I am satisfied that an adjustment in those terms is appropriate.  In the circumstances of this case, I am satisfied that the proposed orders are just and equitable.  Accordingly, I make orders in the terms of the consent order that is signed by the parties.  The orders will remain on the court file.  They will be marked with the letter A. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 5 September 2017.

Associate: 

Date:  5 September 2017