Ullrich and Ullrich - [2013] FCCA 1351

FEDERAL CIRCUIT COURT OF AUSTRALIA

ULLRICH & ULLRICH

[2013] FCCA 1351

Catchwords:
FAMILY LAW – Parenting Orders – consideration of parallel parenting or shared parenting – alignments of the children – property – contributions –s.75(2) factors.

Legislation:

Family Law Act 1975

Federal Magistrates Act 1999

Federal Magistrates Court Rules 2001

Mazorski v Albright [2007] FamCA 520
McCall v Clark [2009] FamCAFC 92
G v C [2006] FamCA 994
Rice v Asplund [1979] FLC 90‑725
Stanford v Stanford [2012] HCA 52
Bevan v Bevan [2013] FamCAFC 11
Pierce v Pierce [1999] FLC92 844

Applicant:

MS ULLRICH

Respondent:

MR ULLRICH

File Number:

HBC 323 of 2012

Judgment of:

Judge McGuire

Hearing dates:

13 & 14 June 2013 and 15 August 2013

Date of Last Submission:

30 August 2013

Delivered at:

Melbourne

Delivered on:

30 October 2013

REPRESENTATION

Counsel for the Applicant:

Mr Turnbull

Solicitors for the Applicant:

Ogilvie Jennings

Counsel for the Respondent:

Mr Crisp

Solicitors for the Respondent:

Blissenden Lawyers

ORDERS

Children:

That all extant Orders in respect of the children X (born (omitted) 1998), Y (born (omitted) 1999), Z (born (omitted) 2002), and W (born (omitted) 2006) be discharged.
That the applicant wife and the respondent husband have equal shared parental responsibility for the children X, Y, Z and W.
That the child X live with the husband and spend time with the wife as agreed between the parties.
That the child Y live with the wife and spend time with the husband as agreed between the parties.
That the children Z and W live with the wife.
That the children Z and W spend time and communicate with the husband as follows:
(a)In week one of a fortnightly cycle from Friday at the conclusion of school until Sunday at 6.00 pm;
(b)In week two of a fortnightly cycle from the conclusion of school on Thursday until the start of school on the Friday;
(c)For one half of each gazetted school term holiday periods as agreed between the parties but failing agreement then for the first half of such holidays.
(d)In 2014 and in each alternate year thereafter from 1 January until 15 January and in 2015 and in each alternate year thereafter from 15 January until 29 January or otherwise as agreed between the parties in writing;
(e)At Easter in 2014 and in each alternate year thereafter from the conclusion of school on Easter Thursday until 5.00 pm Easter Sunday and in 2015 and in each alternate year thereafter from Easter Sunday at 5.00 pm until the return to school;
(f)In any event, in 2013 and each alternate year thereafter from 4.00 pm Christmas Day until 4.00 pm Boxing day and in 2014 and each alternate year thereafter from 5.00 pm Christmas Eve until 4.00 pm Christmas Day and that the children spend time with the mother at Christmas 2013 and in each alternate year thereafter from 5.00 pm Christmas Eve until 4.00 pm Christmas day and in 2014 and in each alternate year thereafter from Christmas day at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ULLRICH & ULLRICH [2013] FCCA 1351
Case: [2013] FCCA 1351
Decision Date: 30 October 2013

CaseChat Overview and Summary

This matter concerned an application by the wife and husband regarding their four children and the division of their property. The court was required to make orders concerning the children's living arrangements, time spent with each parent, and the division of various assets and liabilities.

The court was tasked with determining the most appropriate parenting orders for the children, considering the principle of equal shared parental responsibility and specific living arrangements for each child. Additionally, the court had to adjudicate on the division of the parties' property, including real estate, vehicles, personal chattels, and superannuation entitlements, and to allocate responsibility for various debts.

The court ordered the discharge of all extant orders concerning the children and established equal shared parental responsibility. Specific living arrangements were made, with one child to live with the husband and the others with the wife, and detailed provisions for time spent with the non-resident parent. The court also made extensive orders for the division of property, including the payment of a lump sum by the husband to the wife, the transfer of specific assets and liabilities between the parties, and the splitting of superannuation entitlements. Each party was made solely responsible for liabilities attaching to assets retained by them and for liabilities incurred since separation. The court also imposed restraints on each parent regarding denigrating the other and providing court documents to the children, and made specific orders concerning the husband's superannuation to protect the wife's entitlement.

Orders

Orders of the court

Children:

That all extant Orders in respect of the children X (born (omitted) 1998), Y (born (omitted) 1999), Z (born (omitted) 2002), and W (born (omitted) 2006) be discharged.

That the applicant wife and the respondent husband have equal shared parental responsibility for the children X, Y, Z and W.

That the child X live with the husband and spend time with the wife as agreed between the parties.

That the child Y live with the wife and spend time with the husband as agreed between the parties.

That the children Z and W live with the wife.

That the children Z and W spend time and communicate with the husband as follows:

(a) In week one of a fortnightly cycle from Friday at the conclusion of school until Sunday at 6.00 pm;

(b) In week two of a fortnightly cycle from the conclusion of school on Thursday until the start of school on the Friday;

(c) For one half of each gazetted school term holiday periods as agreed between the parties but failing agreement then for the first half of such holidays.

(d) In 2014 and in each alternate year thereafter from 1 January until 15 January and in 2015 and in each alternate year thereafter from 15 January until 29 January or otherwise as agreed between the parties in writing;

(e) At Easter in 2014 and in each alternate year thereafter from the conclusion of school on Easter Thursday until 5.00 pm Easter Sunday and in 2015 and in each alternate year thereafter from Easter Sunday at 5.00 pm until the return to school;

(f) In any event, in 2013 and each alternate year thereafter from 4.00 pm Christmas Day until 4.00 pm Boxing day and in 2014 and each alternate year thereafter from 5.00 pm Christmas Eve until 4.00 pm Christmas Day and that the children spend time with the mother at Christmas 2013 and in each alternate year thereafter from 5.00 pm Christmas Eve until 4.00 pm Christmas day and in 2014 and in each alternate year thereafter from Christmas day at 4.00 pm until Boxing Day at 4.00 pm.

(g) With all four children in 2014 and each alternate year thereafter from 5.00 pm on the eve of each child’s birthday until 3.00 pm on the child’s birthday and in 2015 and each alternate year thereafter from 3.00 pm on the child’s birthday until 3.00 pm the following day but that the children have time with the wife on W’s birthday in 2014 and in each alternate year thereafter from 5.00 pm on the eve of W’s birthday until 3.00 pm on W’s birthday;

(h) If the children are not otherwise with the husband pursuant to these Orders on Father’s Day Weekend then from 5.00 pm on the Saturday until 5.00 pm on the Sunday;

(i) If the children are with the husband on the Mother’s Day weekend then the husband’s time shall cease at 5.00 pm on the Saturday;

(j) In the event that the children are with the wife on the husband’s birthday, from 9.00 am on the day of the birthday (or at the conclusion of school in the event it is a school day) until the following day at 9.00 am or return to school;

(k) such other times as agreed between the parties from time to time in writing.

That time for the children with the husband pursuant to Orders (6)(a) and (b) hereof be suspended during all school holiday periods.

That unless otherwise agreed between the parties, all changeovers for the children’s time with the husband which do not occur at school will have the husband collecting the children at the start of such time from the wife’s residence and the wife collecting the children from the husband’s residence at the end of each period of time provided that the husband lives in the greater Hobart area failing which the husband be responsible for both collection and return of the children at the designated times.

That each of the parents be and is hereby restrained from denigrating the other parent to or in the presence of any of the children of the parties.

10.

That each of the parents be and is hereby restrained from providing or allowing to be provided to any of the children copies of any of the affidavits or reports or other materials on the Court file and/or a copy of the Reasons for Judgment in this matter.

Property:

11.

That within sixty (60) days of the date of these Orders, the husband pay to the wife a lump sum of $71,808.

12.

That within sixty (60) days of the date of these Orders, the husband do all things and sign all documents so as to transfer his right, title and interest in the following to the wife absolutely:

(i) The property situated at Property T in Tasmania, comprised in Certificate of Title Volume (omitted) Folio (omitted);

(ii) The Toyota (model omitted) motor vehicle;

(iii) The single jet-ski trailer;

(iv) All personalty and chattels in the possession of or under the control of the wife as at the date of these orders;

(v) The balance of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders;

(vi) The balance of any (omitted) policies accounts and investment accounts;

(vii) The wife’s superannuation policies and entitlements with (omitted) Fund and (omitted) Fund

13.

That the wife be solely responsible for and indemnify the husband in respect of the (omitted) Bank mortgage secured by the property at Property T, and make her best endeavours to obtain a release for the husband from his liability under that mortgage within sixty (60) days of the date of these Orders.

14.

That contemporaneously with the transfer order in Order 12 hereof, the wife shall do all things and sign all documents so as to as to transfer all her right, title and interest in the following to the husband absolutely:

(i) The property at Property F in Tasmania registered in the name of the parties and comprised on Certificate of Title Volume (omitted) Folio (omitted);

(ii) The (omitted) dinghy on trailer with motors and fishing and safety gear in the possession of the husband;

(iii) The two (2) jet skis in the possession or control of the husband;

(iv) All personalty and chattels including motor vehicles in the possession or control of the husband as at the date of these Orders and for these purposes the wife shall within twenty-eight (28) days of these orders permit the husband’s sister to enter the property at Property T by pre-appointment so as to collect the husband’s personalty as gathered and packed by the wife and including the following:

· CD’s and LP’s;

· Trophies;

· Clothing;

· All personal contents from filing cabinet, certificates and like;

· Tools from within the house;

· All miscellaneous hand tools of trade;

· All air-conditioning equipment save and except that system connected to the house;

· All personal bits and pieces from the shed;

· Husband’s stored items put in shed;

· Electrical tool connections box;

· Seven (7) piece dining setting;

· (omitted) DVD player;

· Mother’s suitcase;

· Camera;

· Sub-woofer;

· Printer;

· Drill press and drill bits belong to the husband’s father;

· Building materials within and outside the brick shed;

· Jet ski Hull and spare parts;

· Bench top grinder;

· (omitted) wood lathe, lathe tools and chucks;

· Train set belonging to X; and

· (omitted)

(v) The balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these Orders; and

(vi) The husband’s superannuation policies and entitlements with (omitted) Superannuation Fund and (omitted) Superannuation but subject to these Orders.

15.

That each party be solely responsible for and indemnify the other in respect of the following liabilities:

(i) Any and all liabilities attaching to any of the assets retained by that party pursuant to these Orders; and

(ii) Any and all liabilities incurred by that party since separation in either joint names or in that party’s name alone.

16.

That the wife will be solely responsible for the repayment of debts owing to Ms B and shall indemnify the husband in respect of the same.

17.

That whenever a splittable payment becomes payable to the husband from his interest in (omitted) Superannuation Fund, the wife will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $35,119.12 and there be a corresponding reduction in the entitlement the husband would have had but for this Order.

18.

That having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the (omitted) Superannuation Fund.

19.

The operative time for this order is four working days after the service of this order on the Trustee of (omitted) Superannuation Fund.

20.

The husband be restrained from giving the Trustee of the (omitted) Superannuation Fund a Binding Death Benefit Nomination in favour of a child which would have the effect of reducing the value to the wife of the splitting order made above.

21.

That the husband’s legal personal representative indemnifies the wife out of the husband’s estate in respect of any loss the wife suffers as a result of the husband failing to comply with the preceding order.

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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