FEDERAL CIRCUIT COURT OF AUSTRALIA
| WAGSTAFF & WAGSTAFF | [2018] FCCA 927 |
| Catchwords: FAMILY LAW – Property settlement – marital relationship – dispute about various addbacks – lack of financial disclosure – dispute about value of assets – dispute about alleged loans from husband’s mother – dispute about contributions during relationship – asset by asset or joint approach to dividing matrimonial pool. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Cases cited: Af Petersens & Af Petersens (1981) FLC 91-095 Brown and Brown (2007) FLC 93-316 Challen & Challen [2007] FamCA 1292 McMahon & McMahon (1995) FLC 92-606 Norman & Norman [2010] FamCAFC 66 |
| Applicant: | MS WAGSTAFF |
| Respondent: | MR WAGSTAFF |
| File Number: | MLC 8730 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 7, 8, 11, 12 and 13 December 2017 |
| Date of Last Submission: | 13 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr E Hall |
| Solicitors for the applicant: | Malkin Lawyers |
| Counsel for the respondent: | Mr J Salamanca |
| Solicitors for the respondent: | Gold Stone Family Lawyers |
ORDERS
PARENTING
The parents have equal shared parental responsibility for the children of the marriage, namely:
(a)[X] born 2011 (“[X]”); and
(b)[Y] born 2014 (“[Y]”) (“the children”).
The children live with the mother.
The children spend time and communicate with the father as follows:
(a)each alternate weekend from the conclusion of school on Thursday (or 3:30pm if a non-school day) until the commencement of school on Monday (or 9:00am if a non-school day), commencing Thursday 31 May 2018;
(b)in the following week, from the conclusion of school on Thursday (or 3:30pm if a non-school day) until the commencement of school on Friday (or 9:00am if a non-school day);
(c)half of each of the school term holidays as agreed between the parties in writing, and failing agreement, the father to have the first half in odd years and the second half in even years with changeover to occur at 5:00pm on the middle Saturday of the term holidays unless otherwise agreed between the parties in writing;
(d)half of the long summer school holidays as agreed between the parties in writing, and failing agreement, the father to have the second half in odd years and the first half in even years with changeover to occur at 5:00pm on the first Saturday of…
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- WAGSTAFF & WAGSTAFF [2018] FCCA 927
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- [2018] FCCA 927
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CaseChat Overview and Summary
The court's reasoning in relation to parenting focused on establishing orders that promoted the children's best interests, particularly in light of the identified difficulties in communication and trust between the parents. The court ordered equal shared parental responsibility, with the children to live with the mother and spend time with the father on an alternating weekend basis, along with specific arrangements for school holidays, birthdays, and other significant dates. The orders also included provisions for a parenting program, communication protocols between the parties regarding the children's welfare and education, and injunctions to prevent denigration of either parent in the children's presence.
In respect of the property settlement, the court made orders for the payment of $60,000 by the husband to the wife, representing his half share of a specific loan account. The orders further stipulated the transfer of interests in various properties and share portfolios between the parties, with each party assuming sole liability for associated mortgages and outgoings. The court also detailed the occupation rights of each party in specific properties pending finalisation of payments or sale, and specified which assets each party would retain to their exclusion, including bank accounts, vehicles, and superannuation entitlements. The court noted that these orders were intended to finally determine the financial relationship between the parties.
Orders
Orders of the court
PARENTING
1.
The parents have equal shared parental responsibility for the children of the marriage, namely:
(a) [X] born 2011 (“[X]”); and
(b) [Y] born 2014 (“[Y]”) (“the children”).
2.
The children live with the mother.
3.
The children spend time and communicate with the father as follows:
(a) each alternate weekend from the conclusion of school on Thursday (or 3:30pm if a non-school day) until the commencement of school on Monday (or 9:00am if a non-school day), commencing Thursday 31 May 2018;
(b) in the following week, from the conclusion of school on Thursday (or 3:30pm if a non-school day) until the commencement of school on Friday (or 9:00am if a non-school day);
(c) half of each of the school term holidays as agreed between the parties in writing, and failing agreement, the father to have the first half in odd years and the second half in even years with changeover to occur at 5:00pm on the middle Saturday of the term holidays unless otherwise agreed between the parties in writing;
(d) half of the long summer school holidays as agreed between the parties in writing, and failing agreement, the father to have the second half in odd years and the first half in even years with changeover to occur at 5:00pm on the first Saturday of January each year unless otherwise agreed between the parties in writing;
(e) in the event that the father’s birthday does not fall on a day that the father would normally spend time with the children, the children spend time with the father for a period of not less than six hours at times to be agreed between the parties in writing at least seven days prior to the father’s birthday, and failing agreement from 10:00am until 4:00pm;
(f) in the event that Father’s Day does not fall on a day that the father would normally spend time with the children, the children spend time with the father from 5:00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day unless otherwise agreed between the parties in writing, with the mother to have make up time the following weekend;
(g) for a period of not less than four hours on Christmas Day each year at times to be agreed between the parties in writing at least seven days prior to Christmas Day, and failing agreement from 2:00pm until 6:00pm in even years and 10:00am until 2:00pm in odd years;
(h) for a period of not less than four hours on Easter Sunday each year at times to be agreed between the parties in writing at least seven days prior to Easter Sunday, and failing agreement from 10:00am to 2:00pm in even years and 2:00pm until 6:00pm in odd years;
(i) in the event that the children’s birthdays do not fall on days that the father would normally spend time with the children, for a period of not less than four hours on each of the children’s birthdays, at times to be agreed between the parties in writing, and failing agreement from 3:30pm until 7:30pm if it falls on a school day or from 1:00pm until 5:00pm if it falls on a non-school day; and
(j) at such other times as may be agreed between the parties in writing.
4.
For the purposes of changeover, unless otherwise agreed between the parties in writing:
(a) all school changeovers are to occur at the children’s school; and
(b) for all non-school changeovers, the father is to collect the children from the mother’s residence at the commencement of time and the mother is to collect the children from the father’s residence at the conclusion of time.
5.
In the event that the mother’s birthday does not fall on a day that the mother would normally spend time with the children, the arrangements referred to in paragraph 3 be suspended, and the children spend time with the mother for a period of not less than six hours at times to be agreed between the parties in writing at least seven days prior to the mother’s birthday, and failing agreement from 10:00am until 4:00pm.
6.
In the event that Mother’s Day does not fall on a day that the mother would normally spend time with the children, the arrangements referred to in paragraph 3 be suspended, and the children spend time with the mother from 5:00pm on the Saturday preceding Mother’s Day until 5:00pm on Mother’s Day unless otherwise agreed between the parties in writing, with the father to have make up time the following weekend.
7.
The parties attend and complete, as soon as practicable:
(a) a parenting apart post-separation parenting program (“the program”) at an organisation or organisations as nominated by the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia;
(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c) pay and otherwise be responsible for all costs associated with the program; and
(d) provide an appropriate certificate of completion of the program to the other parent or his or her solicitors.
8.
Each party must:
(a) keep the other parent informed at all times of their residential address, contact telephone number and email address and advise the other parent within 24 hours of a change to these details;
(b) keep the other parent informed at all times of the names and contact details of any treating medical or other health practitioner who treats the children or either of them and these orders authorise such practitioner/s to provide the other parent with any reasonable information about the children; and
(c) inform the other parent, as soon as practicable, of any medical condition, significant health issue or illness suffered by the children or either of them.
9.
The parties, their servants and agents be and are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or the other parent’s family; and
(b) discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings,
to or in the presence or hearing of the children or either of them and from permitting any other person so to do.
10.
Each party keep the other informed of changes to the children’s health while the children are in their respective care and as soon as practicable, notify the other parent of any medical emergency involving the children or either of them.
11.
These orders shall act as an authority for any treating medical practitioner and health care provider associated with the children to release and provide the other party with all information that they are lawfully able to provide about the children as requested by the party from time to time (at the requesting parent’s cost).
12.
Upon the child [Y] reaching the age of 12 years, the parties may revisit the time spent arrangements by attending family dispute resolution with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by Relationships Australia (Victoria).
13.
Each party be at liberty, subject to any direction to the contrary from any school at which the children attend, to:
(a) attend parent/teacher interviews separately for the children or either of them;
(b) obtain copies of all school reports, school newsletters, school photographs and any other documents that parents are normally provided with; and
(c) attend any school organised events, activities or functions to which parents are ordinarily invited including but not limited to concerts, carnivals, fetes, family days
and these orders shall act as an authority for same.
14.
All parenting applications otherwise be dismissed.
15.
Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), 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 Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A) Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B) Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
PROPERTY
1.
Within 30 days from the date of these orders (“the date”), the husband pay to the wife the sum of $60,000 (“the payment”) in satisfaction of his half share of the Bank 1 Loan account number (“the portfolio loan”).
2.
That contemporaneously with the payment:
(a) the wife do all such acts and things and sign all such documents as may be required to be solely liable for and indemnify the husband against all payments and liabilities pursuant to the portfolio loan;
(b) the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the property situate at and known as Property A being the land more particularly described in Certificate of Title Volume Folio (“the Property A property”);
(c) the wife be solely liable for and indemnify the husband against all payments and liabilities pursuant to the mortgage registered number (“the Property A mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the Property A property of whatsoever nature and kind;
(d) the wife do all such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, any and all of her right, title and interest in the property situate at and known as Property B being the land more particularly described in Certificate of Title Volume Folio (“the Property B property”);
(e) the husband be solely liable for and indemnify the wife against all payments and liabilities pursuant to the mortgage registered number (“the Property B mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the Property B property of whatsoever nature and kind; and
(f) the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the Share Portfolio 2 shares account number and Share Portfolio 3 shares.
3.
In the event that the whole of the payment has not been made by the date then the Property B property be forthwith sold altogether out of court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a) firstly, to pay all costs, commissions and expenses of the sale;
(b) secondly, to discharge the Property B mortgage and any other encumbrance affecting the Property B property;
(c) thirdly, so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law Rules to the wife; and
(d) fourthly, the balance then remaining to the husband.
4.
Pending the payment or completion of the sale:
(a) the wife have the sole right to occupy the Property A property and during such right of occupation, the wife pay all instalments pursuant to the Property A mortgage and all rates and taxes and like apportionable outgoings of the Property A property as they fall due;
(b) the husband have the sole right to occupy the Property B property and during such right of occupation, the husband pay all instalments pursuant to the Property B mortgage and all rates and taxes and like apportionable outgoings of the Property B property as they fall due;
(c) the parties hold their respective interests in each said property upon trust pursuant to these orders; and
(d) neither party encumber the other’s said property without the consent in writing of the other party.
5.
The husband otherwise retain, to the exclusion of the wife, all items of property (both real and personal and including choses-in-action and financial resources) in his name, possession and/or control, including but not limited to:
(a) his bank accounts and savings;
(b) his personal belongings and effects;
(c) the Motorcycle P motorcycle;
(d) the Motor Vehicle X;
(e) the Motor Vehicle Y; and
(f) his superannuation contributions and entitlements with Super Fund D.
6.
The wife otherwise retain, to the exclusion of the husband, all items of property (both real and personal and including choses-in-action and financial resources) in her name, possession and/or control, including but not limited to:
(a) her bank accounts and savings;
(b) her personal belongings and effects;
(c) the Motor Vehicle Z motor vehicle; and
(d) her superannuation contributions and entitlements with Super Fund E.
7.
The husband be solely liable for and indemnify the wife against any liabilities in his name or encumbering any item of property which he is to retain pursuant to these orders.
8.
The wife be solely liable for and indemnify the husband against any liabilities in her name or encumbering any item of property which she is to retain pursuant to these orders, including but not limited to:
(a) the portfolio loan; and
(b) her HELP debt.
9.
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 superannuation and other property (including choses-in-action) owned by or 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 are to be divided equally and the account/s closed;
(c) insurance policies remain the sole property of the policy owner named thereon;
(d) 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
(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES THAT:
(A) Pursuant to section 81 of the Family Law Act 1975 (Cth), these orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.
(B) Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
Background
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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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