FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEISS & WEISS | [2014] FCCA 14 |
| Catchwords: FAMILY LAW – Child matter – relocation – property settlement – contributions – section 75(2) factors. |
| Legislation: Family Law Act 1975 |
| Paskandy v Paskandy (1999) FLC 92-878 MRR & GR (2010) 240 CLR 461 |
| Applicant: | MS WEISS |
| Respondent: | MR WEISS |
| File Number: | MLC 5930 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 2 - 4 December 2013 |
| Date of Last Submission: | 4 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mawson SC |
| Solicitors for the Applicant: | Coote Family Law |
| Counsel for the Respondent: | Mr Serra |
| Solicitors for the Respondent: | Moores Legal |
ORDERS
Child’s order
That the wife and the husband have equal shared parental responsibility for the child X (“X”) born (omitted) 2012.
That X live with the husband each week between Sunday at 5:00pm and Wednesday at 5:00pm (it being understood that such time coincides with the wife’s employment) unless otherwise agreed between the parties.
That X live with the wife in each week between Wednesday at 5:00pm and Sunday at 5:00pm unless otherwise agreed between the parties.
That the parent expecting to receive X into his or her care collect X from the other parent’s home at the appointed times unless otherwise agreed.
That in any event the wife be permitted to travel to Perth with X for a period of not longer than 3 weeks each summer school holidays commencing December 2014 provided that such time not commence before 26 December in 2014 and in each alternate year thereafter and such time not commence before 23 December in 2015 and in each alternate year thereafter.
That the wife be permitted to travel to Perth with X for one further extended period for not more than two weeks in each calendar year (including 2014) provided that the wife give the husband not less than 28 days prior notice in writing of her intention to so travel.
That the time for X with the husband be suspended during the time contemplated by orders 5 and 6 hereof.
Provided that the times contemplated by orders 5 and 6 hereof not be conjoined.
That X, in any event, spend time with the husband in 2014 and in each alternate year thereafter from 5:00pm Christmas eve until 5:00pm Christmas Day.
That within 28 days of the date of these orders the parents each…
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CaseChat Overview and Summary
The court was required to determine the terms of equal shared parental responsibility for X, including the specific living arrangements and holiday schedules. Additionally, the court had to make orders for the division of the parties' property, including the payment of a lump sum, the transfer of various assets such as vehicles and bank accounts, and the allocation of superannuation entitlements. The court also addressed the need for the parties to attend counselling and for Ms Weiss to undergo psychiatric therapy.
In relation to parenting, the court ordered equal shared parental responsibility for X, with X to live with the husband from Sunday to Wednesday and with the wife from Wednesday to Sunday each week. Specific provisions were made for the wife's travel with X to Perth during summer holidays and for one further extended period annually, with notice requirements. The court also ordered that X spend Christmas Eve to Christmas Day with the husband in alternate years. For property, the husband was ordered to pay the wife a lump sum of $12,150 and transfer certain personalty, bank accounts, a Holden vehicle, and the wife's superannuation to her. The wife was ordered to transfer a property in Victoria, other vehicles, bank accounts, and the husband's superannuation to the husband. The court also made specific orders regarding the division of the husband's superannuation trust, allocating a base amount to the wife as a non-member spouse. Both parties were ordered to be solely responsible for liabilities incurred since separation and those attaching to assets they retained. The parties were also directed to attend conflict dispute intervention counselling and Ms Weiss was ordered to attend psychiatric therapy.
Orders
Orders of the court
Child’s order
1.
That the wife and the husband have equal shared parental responsibility for the child X (“X”) born (omitted) 2012.
2.
That X live with the husband each week between Sunday at 5:00pm and Wednesday at 5:00pm (it being understood that such time coincides with the wife’s employment) unless otherwise agreed between the parties.
3.
That X live with the wife in each week between Wednesday at 5:00pm and Sunday at 5:00pm unless otherwise agreed between the parties.
4.
That the parent expecting to receive X into his or her care collect X from the other parent’s home at the appointed times unless otherwise agreed.
5.
That in any event the wife be permitted to travel to Perth with X for a period of not longer than 3 weeks each summer school holidays commencing December 2014 provided that such time not commence before 26 December in 2014 and in each alternate year thereafter and such time not commence before 23 December in 2015 and in each alternate year thereafter.
6.
That the wife be permitted to travel to Perth with X for one further extended period for not more than two weeks in each calendar year (including 2014) provided that the wife give the husband not less than 28 days prior notice in writing of her intention to so travel.
7.
That the time for X with the husband be suspended during the time contemplated by orders 5 and 6 hereof.
8.
Provided that the times contemplated by orders 5 and 6 hereof not be conjoined.
9.
That X, in any event, spend time with the husband in 2014 and in each alternate year thereafter from 5:00pm Christmas eve until 5:00pm Christmas Day.
10.
That within 28 days of the date of these orders the parents each do all things and sign all documents necessary to enrol in and then attend as directed at Conflict Dispute Intervention Counselling (as recommended by the family reporter) being with the same counsellor and as arranged by the wife and advised to the husband by the wife and that for these purposes either of the parties have leave to provide a copy of the family report of Ms L and the affidavit of Dr G sworn 15 November 2013 to a counsellor conditional upon that report and affidavit not being provided to any other professional or person without leave of the Court.
11.
That the wife attend as directed and referred by her general practitioner for psychiatric therapy with Dr C or such other psychiatrist as referred by her general practitioner until her general practitioner recommends in writing that such therapy cease and the wife comply with any directions from her psychiatrist including the taking of prescribed medications and that, upon his request, the wife provide the husband with a copy of her general practitioner’s advice of cessation of psychiatric therapy
Property
12.
That within 28 days of the date of these orders the husband shall:
(a) Pay to the wife a lump sum of $12,150;
(b) Transfer and vest all his right, title and interest in the following to the wife absolutely:
(i) All personalty and chattels in the possession of or under the control of the wife as at the date of these orders;
(ii) The wife’s term deposit and the balances 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;
(iii) The Holden motor vehicle;
(c) The wife’s superannuation policies and entitlements;
(d) Be solely responsible for and indemnify the wife in respect of the following:
(i) Any and all liabilities incurred by the husband since separation in either joint names or in his name alone;
(ii) Any and all liabilities attaching to any of the assets to be retained by the husband pursuant to these orders.
13.
That contemporaneously with the payment in order 12 hereof the wife shall:
(a) Transfer and vest all her right, title and interest in the following to the husband absolutely:
(i) The property situated Property M in Victoria and comprised in certificate of title volume (omitted) folio (omitted);
(ii) All personalty and chattels in the possession of under the control of the husband as at the date of these orders;
(iii) The Subaru and (vehicle omitted) motor vehicles;
(iv) The balance 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
(v) The husband’s superannuation policies and entitlements but subject to these orders.
(b) Be solely responsible for and indemnify the husband in respect of the following:
(i) Any and all liabilities incurred by the wife since separation in either joint names or in her name alone;
(ii) Any and all liabilities attaching to any of the assets to be retained by the wife pursuant to these orders.
14.
That pursuant to section 90MT(1)(a) of the Family Law Act 1975:
(a) whenever a splittable payment becomes payable in respect of the interest of the husband Mr Weiss in the (omitted) Super Trust, the non-member spouse Ms Weiss shall be paid the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using a base amount of $53,000 and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
(b) The base amount allocated to the non-member spouse as of the interest held by the member spouse in the (omitted) Super Trust is $53, 000.
(c) That this Order has effect from the operative time.
(d) That the operative time for the purpose of this Order is the fourth business day after the date on which a sealed copy of this Order is served on the trustee of the (omitted) Super Trust.
(e) That the trustee of the (omitted) Super Trust and the parties in accordance with the obligations set out in the Family Law Act 1975, the Family Law (Superannuation) Regulations Act 2001 and the Superannuation Industry (Supervision) Regulations Act 1994 shall do all such acts and things and sign all documents as may be necessary to calculate the entitlement of, and make payment to, the non-member spouse in accordance with this 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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