Walter and Walter - [2012] FMCAfam 434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALTER & WALTER

[2012] FMCAfam 434

FAMILY LAW – Property and parenting orders – contributions made by each of the husband and wife’s parents and wife’s family company – loan advanced to wife – wife income earner until cessation approximately two years ago – earning capacity – husband primary caregiver until approximately two years ago then by order shared care arrangement – parties not supportive of continuance of shared care – wife claims husband has manipulated the children – s.75(2) matters considered.

Family Law Act 1975 (Cth), ss.75(2), 90MT(1)(b), 60CA, 60CC(2), 60CC(3), 61DA(1), 65DAA
Family Law (Superannuation) Regulations 2001 (Cth), reg.14F
Superannuation Industry (Supervision) Regulations 1994 (Cth), reg.7A.03, 7A.05, 7A.11

Applicant:

MS WALTER

First Respondent:

MR WALTER

Second Respondent:

INDEPENDENT CHILDREN'S LAWYER

File Number:

MLC 6449 of 2010

Judgment of:

Hartnett FM

Hearing dates:

26, 27, 28 and 30 September 2011

7 and 8 November 2011
31 January 2012

Date of Last Submission:

2 March 2012

Delivered at:

Melbourne

Delivered on:

6 June 2012

REPRESENTATION

Counsel for the Applicant:

Ms Smallwood

Solicitors for the Applicant:

Carew Counsel Pty Ltd

Counsel for the First Respondent:

Mr Weil

Solicitors for the First Respondent:

Kennedy Partners

Counsel for the Independent Children’s Lawyer

Mr Keirnan

Solicitors for the Independent Children’s Lawyer

T J Mulvany & Co

THE COURT ORDERS THAT:

Children

All previous parenting orders be discharged.
The husband and the wife (‘the parties’) have equal shared parental responsibility for the children of the marriage:
(a)X born (omitted) 2000;
(b)Y born (omitted) 2002; and
(c)Z born (omitted) 2004.
The children live with the husband.
The children spend time with the wife as follows:
(a)during the school term, in a fortnightly cycle:
(i)in week 1:
A.on Monday evening from the conclusion of school until 7.30pm;
B.from the conclusion of school Thursday until the commencement of school the following Monday; and
(ii)in week 2:
A.from the conclusion of school Wednesday until the commencement of school on Thursday.
(b)for one half of each school term holiday period at such dates and times as agreed between the parties and in default of agreement:
(i)in 2012 and each alternate year thereafter the wife to have the first half; and
(ii)in 2013 and each alternate year thereafter the wife to have the second half.
(c)for the Christmas school holidays:
(i)in 2012 and each alternate year thereafter, for the first two weeks and in alternating blocks of two weeks thereafter or such lesser period to effect an equal division of the total holiday period between the parties with the wife’s time to commence on the last day of school term in 2012; and
(ii)in 2013 and each alternate year thereafter, for the second two weeks and in alternating blocks of two weeks thereafter or such lesser period to effect an equal division of the total holiday period between the parties with the wife’s time to commence two weeks after the last day of school term in 2013.
(d)in respect of sub-paragraph (b) and (c) hereof the…

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.

Continue reading Walter and Walter

Details

AGLC: Walter and Walter [2012] FMCAfam 434
Case: [2012] FMCAfam 434
Decision Date: 6 June 2012

CaseChat Overview and Summary

The case of Walter and Walter involved a dispute between a husband and wife regarding the parenting arrangements for their three children and the division of their property. The court was required to make decisions on several legal issues, including the allocation of parental responsibility, the living arrangements for the children, and the division of the parties' property and superannuation interests.

The court began by determining the allocation of parental responsibility, finding that the husband and wife had equal shared parental responsibility for the children. The court then established the living arrangements for the children, which included the children living with the husband and the wife having regular visitation rights. The court also set out specific arrangements for school term time, school holiday periods, and special events. Furthermore, the court addressed the issue of communication between the parties, prohibiting them from denigrating each other and discussing the proceedings with or in the presence of the children.

In relation to the division of property, the court ordered the distribution of funds from a joint investment account and the allocation of interests in a jointly owned property. The court also addressed the division of the parties' superannuation interests, ordering the creation of new interests in each party's name and the calculation of entitlements under the Family Law Act 1975. The court further ordered that each party retain their respective interim settlement monies, interests in real property, furniture, chattels, and motor vehicles, and be liable for their own post-separation debts.

The court dismissed the wife's application for child support and all other applications filed by the husband and wife in the proceedings. The detailed and comprehensive orders made by the court aimed to provide a stable and equitable environment for the children while addressing the property and financial interests of the parties.

Orders

Orders of the court

Children

All previous parenting orders be discharged.

The husband and the wife (‘the parties’) have equal shared parental responsibility for the children of the marriage:

(a) X born (omitted) 2000;

(b) Y born (omitted) 2002; and

The children live with the husband.

The children spend time with the wife as follows:

(a) during the school term, in a fortnightly cycle:

(i) in week 1:

A. on Monday evening from the conclusion of school until 7.30pm;

B. from the conclusion of school Thursday until the commencement of school the following Monday; and

(ii) in week 2:

A. from the conclusion of school Wednesday until the commencement of school on Thursday.

(b) for one half of each school term holiday period at such dates and times as agreed between the parties and in default of agreement:

(i) in 2012 and each alternate year thereafter the wife to have the first half; and

(ii) in 2013 and each alternate year thereafter the wife to have the second half.

(i) in 2012 and each alternate year thereafter, for the first two weeks and in alternating blocks of two weeks thereafter or such lesser period to effect an equal division of the total holiday period between the parties with the wife’s time to commence on the last day of school term in 2012; and

(ii) in 2013 and each alternate year thereafter, for the second two weeks and in alternating blocks of two weeks thereafter or such lesser period to effect an equal division of the total holiday period between the parties with the wife’s time to commence two weeks after the last day of school term in 2013.

(d) in respect of sub-paragraph (b) and (c) hereof the school holiday periods shall be those as applicable to (omitted) Primary School until Z commences her secondary schooling.

(e) on Christmas Day:

(i) from 12.30pm on 25 December 2012 to 3.00pm to 26 December 2012 and each alternate year thereafter; and

(ii) from 3.00pm on 24 December 2013 to 12.30pm on 25 December 2012 and each alternative year thereafter; and

(f) on the wife’s birthday:

(i) if it falls on a weekday, from 6.00pm to 9.00pm; and

(ii) if it falls on a weekend or during the school holiday period, from 10.00am to 7.00pm.

(g) on the children’s birthdays:

(i) if it falls on a weekday, from 4.00pm to 6.00pm; and

(ii) if it falls on a weekend or during the school holiday period, from 10.00am to 5.00pm.

(h) on Mother’s Day in each year, from 10.00am to 7.00pm; and

(i) at such further or other times as may be agreed between the parties.

The wife’s time with the children be suspended:

(a) on Father’s Day in each year, from 10.00am to 7.00pm;

(b) on the husband’s birthday:

(i) if it falls on a weekday, from 6.00pm to 9.00pm; and

(ii) if it falls on a weekend or during the school holiday period, from 10.00am to 7.00pm.

(i) if it falls on a weekday, from 4.00pm to 6.00pm; and

(ii) if it falls on a weekend or during the school holiday period, from 10.00am to 5.00pm.

For the purpose of changeover:

(a) changeover take place at the children’s schools at those times that coincide with the start and finish of school;

(b) in relation to paragraph 4(a)(i)(A), the wife deliver the children to the husband’s residence at the conclusion of her time; and

(c) in relation to holiday times and special events the parent who is commencing or resuming time with the children collect them from the other parent’s residence.

There be reasonable telephone and Skype contact between the children and the parent with whom they are not living.

Each of the parties be restrained from denigrating the other party and discussing these proceedings, or the contents of any documents filed in these proceedings, with or in the presence or hearing of the children and from permitting any other person to do so.

In the event that a child or the children require any urgent medical treatment, the other parent to be notified at the first available opportunity by the parent with whom they are living at that time and in the event that a child or the children are hospitalised both of them be at liberty to attend and remain at the hospital.

10.

Neither party remove the children from the Commonwealth of Australia without the prior written consent of the other or further order of the Court.

11.

Nothing herein contained shall restrict either parent and any member of the extended family or household of either parent, subject always to any direction of any Principal or delegate of the Principal of any school attended by the children from time to time, from attending sporting events, performances, annual or periodic events to which parents and extended family are customarily invited.

12.

The wife be permitted to continue X’s enrolment at (omitted) School for the 2012 school year and thereafter each year until she has completed Year 12 and all educational expenses (being tuition, computer, uniform, book and school arranged extra-curricular expenses) in relation to X shall be the responsibility of the wife. This same order shall subsequently apply to each of the children Y and Z when they enter Year 7. Y and Z are otherwise to continue their enrolment to the completion of Grade 6 at (omitted) Primary School.

13.

The wife be restrained by injunction from informing or reporting to the children or any parents of the children at their schools that she is funding the tuition expenses for the children’s education at the (omitted) School.

14.

The wife be permitted to take X to counselling sessions with her if the wife feels same is necessary. Such counselling shall be funded by the wife and shall not extend for a period beyond three (3) months unless agreed to by the husband.

15.

Until the Independent Children’s Lawyer advises the lawyers for the father and mother that he has explained the orders herein to the children, each of the husband and wife by themselves, their servants and/or agents are hereby restrained from informing any of the children of these orders, and discussing these orders and the proceedings in the sight and/ or presence and/or hearing of any of the children or on social media including Facebook.

16.

On receipt of a letter from the Independent Children’s Lawyer to the lawyers for each of the parents confirming the completion of the process of explanation of orders to the children, the order for the appointment of the Independent Children’s Lawyer be discharged.

Property

17.

The monies invested in the joint names of the parties with Mason Sier Turnbull representing the net proceeds of sale of the jointly owned property situated at Property S in the State of Victoria together with the interest thereon be forthwith applied as follows:

(a) the sum of $249,000 to (omitted); and

(b) the balance remaining to be divided as to $156,045.60 to the wife and the balance to the husband.

18.

The wife shall be solely responsible for the payment of the overseas (omitted) credit card in the joint names of the parties and indemnify the husband with respect to any such liability.

19.

The husband and wife provide to each other (within 7 days hereof) an updated valuation of all of each of their respective superannuation interests at 31 January 2012.

20.

In accordance with s.90MT(1)(b) of the Family Law Act 1975 (Cth) (‘the Act’):

(a) the husband is entitled to be paid the specified percentage of each splitable payment out of the wife’s interest in CBUS Super Fund membership number (omitted) (‘the CBUS fund’); and

(b) the wife’s entitlement to payment out of her interest in the CBUS fund and the entitlement of such other person to whom a splitable payment may be made is correspondingly reduced by force of this order.

21.

The specified percentage for the purpose of order 20 of these orders is 50 percent.

22.

The Trustee of the CBUS fund (‘Trustee’) shall do all acts and things and sign all such documents as may be necessary to:

(a) calculate in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement for the husband created in paragraphs 20 and 21 of these orders; and

(b) pay the entitlement whenever the Trustee makes a splitable payment out of the wife’s interest in the fund.

23.

After service of the payment split notice pursuant to reg.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) the husband shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising his request pursuant to reg.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in his name in the fund.

24.

The parties note that:

(a) the value of the transferable benefits to be transferred from the wife’s interest to the husband’s interest will be calculated by the Trustee in accordance with reg.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth); and

(b) pursuant to reg.14F of the Family Law (Superannuation) Regulations 2001 (Cth) any payments made from the wife’s interest in the CBUS fund after the Trustee has created a new interest in the husband’s name as contemplated by paragraph 23 are not splitable payments.

25.

Paragraphs 20-22 have effect from the operative time.

26.

The operative time for the purpose of these orders is fourteen (14) business days after the date of service of a sealed copy of this order upon the Trustee.

27.

In accordance with s.90MT(1)(b) of the Act:

(a) the wife is entitled to be paid the specified percentage of each splitable payment out of the husband’s interest in the Australian Super Fund member number (omitted) (‘the Australian Super Fund’); and

(b) the husband’s entitlement to payment out of his interest in the Australian Super Fund and the entitlement of such other person to whom a splitable payment may be made is correspondingly reduced by force of this order.

28.

The specified percentage for the purposes of paragraph 27 of this order is 50 percent.

29.

The Trustee of the Australian Super Fund (the ‘Trustee’) shall do all acts and things and sign all documents as may be necessary to:

(a) calculate in accordance with requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement for the wife created by paragraphs 27 and 28 of these orders; and

(b) pay the entitlement whenever the Trustee makes a splitable payment out of the husband’s interest in the Fund.

30.

After service of the payment split notice pursuant to reg.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) the wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to reg.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in her name in the fund.

31.

The parties note that:

(a) the value of the transferable benefits to be transferred from the husband’s interest to the wife’s interest will be calculated by the Trustee in accordance with reg.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth); and

(b) pursuant to reg.14F of the Family Law (Superannuation) Regulations 2001 (Cth) any payments made from the husband’s interest in the Australian Super Fund after the Trustee has created a new interest in the wife’s name as contemplated by paragraph 30 are not splitable payments.

32.

Paragraphs 27- 29 have effect from the operative time.

33.

The operative time for the purpose of these orders is fourteen (14) business days after the date of service of a sealed copy of these orders upon the Trustee.

34.

Forthwith and contemporaneously:

(a) the husband provide a withdrawal of any caveat lodged by him over the wife’s property at Property T in the State of Victoria; and

(b) the wife provide a withdrawal of any caveat lodged by her over the husband’s interest in the property at Property P in the State of Victoria.

35.

Otherwise each party retain:

(a) the monies received by them as and by way of interim settlement, being the sum of $100,000 each;

(b) their interests in real property;

(d) their motor vehicles; and

(e) liability for all debts incurred post separation.

36.

The wife’s application in so far as it seeks orders as to child support be otherwise dismissed.

37.

All applications filed by the husband and wife in these proceedings be otherwise dismissed.

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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