ULSTER & VINEY

Case [2015] FCCA 2749


FEDERAL CIRCUIT COURT OF AUSTRALIA

ULSTER & VINEY [2015] FCCA 2749

Catchwords:
FAMILY LAW – Parenting – the Wife seeks the primary care of the parties’ two children and to relocate to regional Victoria – the Husband opposes the Wife’s application to relocate and seeks orders the children live week about with each parent. HELD – relocation allowed – children live with the Wife and spend regular time with the Husband.

FAMILY LAW – Property – application for property settlement – contributions – the Husband’s initial contributions substantially outweigh those of the Wife – – section 75(2) factors – the Wife is to retain the primary care of the parties’ two children and Husband has superior earning capacity. HELD – orders made for 55/45 division of the asset pool in favour of the Husband.

Legislation:
Family Law Act 1975 (Cth), ss.75(2), ss.60B, 60CA, 60CC(2) and 60CC(3), 61DA, 65DAA, 75 (2), 79 (2), 79 (4), 75 (2) (o)
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Taylor v Barker (2007) 37 Fam FLR 461
Cabbell & Cabbell [2009] FamCAFC 205
Cowley & Mendoza [2010] FamCA 597
Norman & Norman [2010] FamCAFC 66
Heath v Hemming(No.2) [2011] FamCA 749
Stanford & Stanford [2012] HCA 52
Bevan and Bevan [2013] FamCAFC 116
Applicant: MR ULSTER
Respondent: MS VINEY
File Number: MLC 8852 of 2014
Judgment of: Judge Bender
Hearing date: 15 July 2015
Date of Last Submission: 17 July 2015
Delivered at: Melbourne
Delivered on: 14 October 2015

REPRESENTATION

Counsel for the Husband: Mr Wilson
Solicitors for the Husband: Taussig Cherrie Fildes
Counsel for the Wife: Mr Williams
Solicitors for the Wife: Pearsons Lawyers

ORDERS

Parenting

  1. The parties have equal shared parental responsibility for the children X born (omitted) 2006 (“X”) and Y born (omitted) 2008 (“Y”).

  2. The Wife be permitted to relocate with X and Y to the (omitted) area at the end of the 2015 school year.

  3. Pending relocation X and Y’s living arrangements shall continue in accordance with the interim orders made 28 October 2014.

  4. Upon relocation X and Y shall live with the Wife and spend time and communicate with the Husband as follows:

    (a)during school terms:

    (i)each alternate weekend from 5:00pm Friday to 5:00pm Sunday or 5:00pm Monday if Monday is a non-school day and to 5:00pm Melbourne Cup Day if the Monday before Melbourne Cup Day is a non-school day and X and Y are with the Husband on the Melbourne Cup weekend;

    (ii)in the alternate week from after school to 7:00pm Friday;

    (b)for 10 days in each of the term holidays as agreed between the parties and failing agreement from after school on the last day of term to 5:00pm on the second Wednesday of the holidays;

    (c)in the 2015/2016, 2016/2017 and 2017/2018 long summer vacation for two weeks commencing 27 December and for one week concluding at 5:00pm the day before school commences;

    (d)for one half of the long summer vacation commencing 2018/2019 as agreed between the parties…

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AGLC
ULSTER & VINEY [2015] FCCA 2749
Case
[2015] FCCA 2749
Decision Date

CaseChat Overview and Summary

In this matter before Judge Bender, the wife sought primary care of the parties' two children and permission to relocate with them to regional Victoria, while the husband opposed the relocation and sought orders for week-about living arrangements. In relation to property, the parties sought orders for property settlement.

The court was required to determine whether to permit the wife's relocation with the children and, if so, to establish appropriate parenting orders for time spent with each parent. Additionally, the court needed to determine the division of the parties' asset pool, considering their respective contributions and relevant section 75(2) factors, including the wife's primary care of the children and the husband's superior earning capacity.

The court allowed the wife's application to relocate with the children, ordering that they live with her and spend regular time with the husband. In its property orders, the court found that the husband's initial contributions substantially outweighed those of the wife. Applying these considerations, the court ordered a 55/45 division of the asset pool in favour of the husband.

Orders

Orders of the court

Parenting

1.

The parties have equal shared parental responsibility for the children X born (omitted) 2006 (“X”) and Y born (omitted) 2008 (“Y”).

2.

The Wife be permitted to relocate with X and Y to the (omitted) area at the end of the 2015 school year.

3.

Pending relocation X and Y’s living arrangements shall continue in accordance with the interim orders made 28 October 2014.

4.

Upon relocation X and Y shall live with the Wife and spend time and communicate with the Husband as follows:

(a) during school terms:

(i) each alternate weekend from 5:00pm Friday to 5:00pm Sunday or 5:00pm Monday if Monday is a non-school day and to 5:00pm Melbourne Cup Day if the Monday before Melbourne Cup Day is a non-school day and X and Y are with the Husband on the Melbourne Cup weekend;

(ii) in the alternate week from after school to 7:00pm Friday;

(b) for 10 days in each of the term holidays as agreed between the parties and failing agreement from after school on the last day of term to 5:00pm on the second Wednesday of the holidays;

(c) in the 2015/2016, 2016/2017 and 2017/2018 long summer vacation for two weeks commencing 27 December and for one week concluding at 5:00pm the day before school commences;

(d) for one half of the long summer vacation commencing 2018/2019 as agreed between the parties and failing agreement the second half in odd numbered years and the first half in even numbered years;

(e) for the (religion omitted) holidays as follows:

(i) from 9:00am on the first evening of X until 9:00am on the fourth evening of X;

(ii) from 9:00am on the first evening of (omitted) until 9:00am on the third evening of (omitted);

(iii) from 3:30pm on the second evening of (omitted) until 9:00am the following morning; and

(iv) from 3:30pm on the first evening of (omitted) until 9:00am the following morning;

(f) on X and Y’s birthdays as agreed between the parties and failing agreement for two hours from 5:00pm to 7:00pm if the birthday is on a school day and for six hours if the birthday is on a non-school day from 10:00am to 4:00pm;

(g) on the Husband’s birthday from 5:00pm to 7:00pm if the birthday is on a school day and from 10:00am to 4:00pm if the birthday is on a non-school day;

(h) on Father’s Day from 5:00pm the day preceding Father’s Day to 5:00pm on Father’s Day; and

(i) as otherwise agreed between the parties.

5.

X and Y’s time with the Husband pursuant to these orders shall be suspended as follows:

(a) from 12:00 noon Christmas Eve to 6:00pm Boxing Day each year;

(b) on the Wife’s birthday from 10:00am to 4:00pm if a non-school day; and

(c) on Mother’s Day from 5:00pm the day preceding Mother’s Day.

6.

If one of the Easter days being Good Friday to Easter Monday (“the Easter long weekend”) falls on one of the first four nights of X and Y shall spend the Easter long weekend with the Husband and otherwise X and Y shall spend the Easter long weekend with the Wife save and except if X and Y have spent two consecutive Easter long weekends with the Husband they shall spend the following Easter long weekend with the Wife even if one of the four nights of X falls during that Easter weekend.

7.

The Wife is at liberty to telephone X and Y twice each week when X and Y are with the Husband during school holidays.

8.

Each party shall facilitate X and Y telephoning/Skyping/Facetiming the other when X and Y are not in their care upon their reasonable request to do so.

9.

Changeover for the time X and Y spend with the Husband shall be as follows unless otherwise agreed between the parties in writing:

(a) for the time pursuant to orders (4)(a)(i) and (4)(h) herein the Wife shall deliver X and Y to and collect X and Y from the (omitted) McDonalds;

(b) for the time pursuant to orders (4)(a)(ii), (4)(f) and (4)(g) herein the Husband shall collect and return X and Y to the (omitted) car park at (omitted);

(c) for the time pursuant to orders (4)(b), (4)(c), (4)(d) and (4)(e) herein the Husband shall collect X and Y at the commencement of time from the (omitted) car park at (omitted) and the Mother shall collect X and Y from the (omitted) McDonalds at the conclusion of time; and

(d) when the Husband’s time is suspended pursuant to order (5) herein the Wife shall collect and return X and Y to the (omitted) McDonalds.

10.

The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of X and/or Y and from permitting any other person so to do.

11.

The parties be permitted to attend all school events relating to X and Y normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.

12.

Each party shall advise the other of any serious illness or injury suffered by X and Y as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

13.

Each party keep the other informed at all times of their current residential address and contact telephone number.

14.

Each party be at liberty during his/her time with X and Y during school holidays (including long summer holidays) to travel with X and Y (or either of them) interstate and overseas, provided that the travelling party provide the other details of itineraries, accommodation and transport (including flights):

(a) at least seven days prior to commencement of interstate travel or such shorter period as agreed between the parties; and

(b) at least 28 days prior to commencement of overseas travel or such shorter period as agreed between the parties.

15.

No later than seven days prior to commencement of overseas travel with X and Y by a party pursuant to order (14) herein, the other party provide to the travelling party such of X and Y’s passports as are in the non-travelling party’s possession or control.

16.

Each party do all such acts and sign all such documents as are required to maintain and renew X and Y’s passports from time to time, the costs of same to be borne equally between the parties.

17.

The (country omitted) passports of X and Y be provided to the Wife from 1 January 2016.

18.

The Australian passports of X and Y be provided to the Husband from 1 January 2016.

Property

19.

The monies currently held in trust on behalf of the parties be divided such that the Husband receive 55% and the Wife receive 45% of the parties’ total realisable assets, such realisable assets being the monies currently held in trust on behalf of the parties, the partial property settlement already received by them and the proceeds of sale of the caravan.

20.

Orders (20) to (22) herein are binding on the Trustee of the Husband’s interest in (omitted) Super (“the Superannuation Fund”) Member Number (omitted).

21.

Pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the Husband’s interest in the Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount of $25,440.00 and there be a corresponding reduction in the entitlement of the Husband to whom the splittable payment would have been made but for these orders.

22.

Order (21) has effect from the operative time and that the operative time for such order be four business days after the service of a sealed copy of these Orders made by the Court on the Trustee of the Superannuation Fund.

23.

Pending compliance with orders (19) to (22) herein the Husband be and is hereby restrained by himself, his servants and/or agents from:

(a) executing a death benefit nomination in favour of an person or doing any other act or thing which would render any part of his interest in the Superannuation Fund a non-splittable payment within the meaning of the regulations (12) and (13) of the Regulations;

(b) exercising any option available to him or take any part of his entitlement in the Superannuation Fund in the form of a pension; or

(c) otherwise dealing with or redeeming his entitlements in the Superannuation Fund.

24.

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

(a) each party be solely entitled to the exclusion of the other to other property (including choses-in-action) owned by or in possession of such party as at the date of these orders;

(b) insurance policies remain the sole property of the owner named therein;

(c) 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; and

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

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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