FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILBURN & WILBURN | [2019] FCCA 2131 |
| Catchwords: PROPERTY – Valuation of farming property – whether the father has disposed of matrimonial property – whether the father has disclosed his obligations of full and frank disclosure – whether the Court should draw adverse inferences from the father’s purported failure to provide full and frank disclosure. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA, 74 and 75 Family Law (Family Disputes Resolution Practitioners) Regulations 2008, r.25 |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Taylor v Barker [2007] FamCA 1246 Weir and Weir (1993) FLC ¶92-338 |
| Applicant: | MR WILBURN |
| Respondent: | MS WILBURN |
| File Number: | DGC 1426 of 2018 |
| Judgment of: | Judge McNab |
| Hearing dates: | 12, 13, 14, 15 March 2019 and 1 and 2 April 2019 |
| Date of Last Submission: | 2 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 August 2019 |
| Orders pronounced: | 2 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Laidlaw |
| Solicitors for the Applicant: | Tyler Tipping and Woods |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | Aston Legal |
ORDERS
THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for X born the …, Y born … 2012 and Z born … 2014 (‘the Children’).
The Respondent Wife be restrained by injunction and hereby is restrained from relocating the residential address of the Children from the Town D / Town E area unless otherwise agreed by the parties in writing.
The Children live with the Respondent Wife.
The Children spend time and communicate with the Applicant Husband as follows:
(a)during school terms, in a Three-Week cycle, commencing on 12 August 2019 as Week 1:
(i)weeks 1 and 2 – from after school or 3:30pm Friday until the commencement of school or 9.00am Monday;
(ii)week 3 – on Thursday from after school until the commencement of school or 9.00am Friday;
(b)for half of all school term and long summer holidays, as agreed, and in default of agreement:
(i)the first half of all term holidays, commencing at the conclusion of the school term and concluding at 5.00pm on the middle Saturday; and
(ii)in 2019 and each alternative year thereafter, the second half of the long summer holidays, and in 2020 and each alternate year thereafter, the first half;
(c)for Christmas, for the period Christmas Eve to Boxing Day as follows:
(i)from 5.00pm Christmas Eve to 3.00pm Christmas day in odd years;
(ii)from 3.00pm Christmas Day to 6.00pm Boxing Day in even years;
(d)as may be otherwise agreed between the parties from time to time;
(e)subject to the following:
(i)for avoidance of doubt, the Three-Week cycle of the Children’s time with the…
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- Wilburn & Wilburn [2019] FCCA 2131
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- [2019] FCCA 2131
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CaseChat Overview and Summary
The court was required to determine the terms of parenting orders, including the allocation of parental responsibility, the children's living arrangements, and the time each parent would spend with the children. Additionally, the court had to make orders concerning the division of joint bank accounts, the disposition of the matrimonial home, the ownership of a farming business and a mortgage broking business, and the distribution of superannuation entitlements.
The court ordered that the parties have equal shared parental responsibility for the children. The Respondent Wife was restrained from relocating the children from the Town D/Town E area without the parties' written agreement, and the children were to live with her. Specific arrangements were detailed for the children's time with the Applicant Husband during school terms, holidays, and special occasions, including provisions for Father's Day, Mother's Day, and birthdays. The court also made orders regarding changeovers, communication about the children's health, and prohibitions against denigrating the other parent. Financial orders included the distribution of joint funds, the Applicant Husband retaining the Town D property subject to discharging the mortgage and indemnifying the Respondent Wife, and the Applicant Husband retaining the farming business. The Respondent Wife was to resign as trustee of a family trust and appoint the Applicant Husband as trustee, while retaining her mortgage broking business. Significant orders were made regarding the division of the Applicant Husband's superannuation, allocating a base amount to the Respondent Wife and detailing the process for payment and the trustee's obligations. The court also noted its intention for these orders to finally determine the financial relationship between the parties.
Orders
Orders of the court
THE COURT ORDERS THAT:
1.
The parties have equal shared parental responsibility for X born the …, Y born … 2012 and Z born … 2014 (‘the Children’).
2.
The Respondent Wife be restrained by injunction and hereby is restrained from relocating the residential address of the Children from the Town D / Town E area unless otherwise agreed by the parties in writing.
3.
The Children live with the Respondent Wife.
4.
The Children spend time and communicate with the Applicant Husband as follows:
(a) during school terms, in a Three-Week cycle, commencing on 12 August 2019 as Week 1:
(i) weeks 1 and 2 – from after school or 3:30pm Friday until the commencement of school or 9.00am Monday;
(ii) week 3 – on Thursday from after school until the commencement of school or 9.00am Friday;
(b) for half of all school term and long summer holidays, as agreed, and in default of agreement:
(i) the first half of all term holidays, commencing at the conclusion of the school term and concluding at 5.00pm on the middle Saturday; and
(ii) in 2019 and each alternative year thereafter, the second half of the long summer holidays, and in 2020 and each alternate year thereafter, the first half;
(c) for Christmas, for the period Christmas Eve to Boxing Day as follows:
(i) from 5.00pm Christmas Eve to 3.00pm Christmas day in odd years;
(ii) from 3.00pm Christmas Day to 6.00pm Boxing Day in even years;
(d) as may be otherwise agreed between the parties from time to time;
(e) subject to the following:
(i) for avoidance of doubt, the Three-Week cycle of the Children’s time with the Applicant Husband during school terms shall be suspended for the period of each school term holiday and long summer holiday and thereafter continue in the said cycle, unaffected by the said period of suspension;
(ii) if the Children’s time with the Applicant Husband does not fall on Father’s Day, then the Children shall spend time with the Applicant Husband from 5.00pm the day prior to Father’s Day until the commencement of school the day following Father’s Day;
(iii) if the Children’s time with the Respondent Wife does not fall on Mother’s Day, then the Children shall spend time with the Respondent Wife from 5.00pm the day prior to Mother’s Day until the commencement of school the day following Mother’s Day; and
(iv) if the any of the Children’s birthdays fall on a day that the said Children are not with either parent then the Children spend time with the parent they are not then with, for a two hour block as agreed and in default of agreement, from 3.30pm (or the conclusion of school) until 5.30pm.
5.
Changeover for the purposes of these Orders shall occur at the Children’s respective school or Children’s centre wherever possible and, if not a day when the Children so attend, then changeover shall occur at the residence of the parent who currently has the Children in their respective care.
6.
That each parent shall immediately inform the other parent (including as soon as practicable via SMS) of any significant illness, medical treatment or specialist consultation required by the Children, or any of them, during the time spent with that parent.
7.
The parties not criticize or denigrate the other party, or the other party’s family or any other associate of the other party, in the presence of or within the hearing of the Children.
8.
The parties shall advise the other of any change of telephone number, contact mobile number, email or residential address within 24 hours of such change occurring.
9.
Each parent is authorised by these Orders to obtain from the Children’s respective schools; all notices, letters, school reports and invitations, and be permitted to attend parent/teacher interviews or other activities to which parents are usually invited.
10.
In the event that one or other of the parties view that a material change in circumstances arises in the future as to these Parenting Orders, the parties shall each do all things reasonably practicable to attend Family Dispute Resolution with a view to resolving any necessary changes, prior to issuing any fresh Application.
11.
The parties do all things necessary to distribute the funds presently standing to the joint credit of the parties in the several accounts held with Commonwealth Bank of Australia,(‘CBA’), (being those account numbers ending #…, #… and #…, in the sum total of $535,000 or thereabouts), as follows:
(a) firstly, as to the Respondent Wife $471,600;
(b) secondly, as to the Applicant Husband $68,400;
(c) thirdly, as to any remaining balance, 45% to the Applicant Husband and 55% to the Respondent Wife;
(d) the funds in the accounts ending #… and #…, to be distributed within 7 days of the date of these Orders, or as soon as reasonably practicable, to the Respondent Wife in partial satisfaction of her entitlements herein; and
(e) the funds in the account ending #…, to be distributed contemporaneously with the Applicant Husband refinancing the existing mortgage to CBA as provided below.
12.
The Applicant Husband shall retain as his absolute property the real property known as C(2) Street, Town D, (‘the C(2) Street, Town D’ property).
13.
Within 60 days of the date of these Orders, the Applicant Husband shall do all such things necessary to cause the discharge of the mortgage affecting the title to the C(2) Street, Town D property so as to discharge any liability that the Respondent Wife has to the mortgagee (‘the discharge’) and the Applicant Husband shall indemnify the Respondent Wife in respect of any liability arising under the said mortgage. The receipt by the Respondent Wife of a letter from the mortgagee stating the Respondent Wife is released from personal liability in respect of any actions, claims, suit and demands arising under the said mortgage or any personal covenant or any personal guarantee it contains be sufficient evidence of compliance by the Applicant Husband with this Order.
14.
In the event that the Applicant Husband fails, omits or neglects to comply with paragraph 13 of these Orders, the Applicant Husband do all acts and things and sign all documents necessary so as to effect a sale of the C(2) Street, Town D property (‘the Sale’) for the best price reasonably obtainable in the following manner:
(a) list the C(2) Street, Town D for sale by public auction to occur within 180 days from the date of these Orders, with such agent as the Applicant Husband may elect;
(b) the reserve sale price at which the C(2) Street, Town D property be auctioned be the price nominated as the fair market value by agent;
(c) the parties each co-operate in every way with the agent including (without limiting the generality of the foregoing):
(i) allowing inspection of the C(2) Street, Town D property at all reasonable times requested by the agent;
(ii) doing or saying nothing to hinder or prevent a sale being effected; and
(iii) signing all documents requested by the agent in relation to the listing for sale of the property except a contract or agreement for sale which has not been authorised by the parties’ solicitors.
15.
On settlement of the sale of the C(2) Street, Town D property as provided by paragraph 14 of these Orders, the proceeds of sale be applied in the following manner and priority:
(a) all costs and expenses of sale including legal costs and disbursements, agents commission, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);
(b) the amounts required to discharge the mortgage;
(c) the amounts required to pay all municipal and water rates outstanding with respect to the C(2) Street, Town D property; and
(d) the balance then remaining will be property of the Applicant Husband.
16.
The parties have liberty to apply on 3 days’ notice for implementation of these Orders in respect of the Sale.
17.
Pending the completion of the Sale:
(a) the Applicant Husband have the sole right to occupy and receive the rents and profits of the C(2) Street, Town D property ;
(b) the Applicant Husband be solely responsible for the payment of any mortgage liability and other outgoings; and
(c) neither party encumber or further encumber the C(2) Street, Town D property without the consent of the other party or prior order of the Court.
18.
The Applicant Husband shall retain as his absolute property, the farming business, including plant, equipment and any stock conducted on or from the C(2) Street, Town D property and or in the style “…”.
19.
The Respondent Wife do all such things and sign all such documents in order to:
(a) resign from any office as trustee in the “Mr Wilburn and Ms Wilburn Family Trust” (the trustee of which is the owner of shares in G Company Pty Ltd);
(b) confirm or appoint the Applicant Husband as trustee thereof; and
(c) vest or transfer any property held in the said trust to the continuing or new trustee
(d) within 14 days of being provided such documents by the Applicant Husband.
20.
The Respondent Wife shall retain as her absolute property, the mortgage broking business conducted by her.
21.
Each party shall indemnify the other in respect of any liability whatsoever arising out of or in connection with the said businesses retained by each of them.
22.
Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), the base amount allocated to the Wife out of the interest held by the husband in the Super Fund H superannuation fund (Member No. …) (‘the fund’) is $66,230.
23.
Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of MR WILBURN interest in Super Fund H, the trustee shall pay MS WILBURN the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $66,230 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these Orders.
24.
Order 22 has effect from the operative time, being the beginning of the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee.
25.
The Trustee of the fund, the Applicant Husband and the Respondent Wife, in accordance with the obligations set out under the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001, the Superannuation Industry (Supervision) Act 1993 and Superannuation Industry (Supervision) Regulations 1994, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to the wife in accordance with Order 22.
26.
Upon receipt of the Respondent Wife of the payment split notice issued by the Trustee pursuant to Rule 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Respondent Wife exercise her election pursuant to Rules 7A.05 and Rule 7A.06 of the Superannuation Industry (Supervision) Regulation 1994 to request the Trustee create a new interest in the Respondent Wife’s name in the fund or to rollover or transfer the transferable benefits to such Fund/Funds of the Respondent Wife’s choosing.
27.
Until the happening of any of the following (whichever is the earlier):
(a) the creation of a new interest in the fund, transfer or roll-over into another superannuation fund, of the payment split created by Order 22; or
(b) the Respondent Wife satisfies a condition of release in accordance with Schedule 1 of the Superannuation Industry (Supervision) Regulations 1994, and is paid the payment split created by Order 22.
28.
The Applicant Husband be and is hereby restrained by himself, his servants and agents from executing a binding death nomination in favour of any person other than the wife or from doing any such act or thing which would render any part of his interest in the Fund a non-splittable payment within the meaning of Rules 12 and 13 of the Family Law (Superannuation) Regulations 2001.
29.
The solicitor for the Respondent Wife serve a sealed copy of these Orders on the Trustee of the Fund within fourteen days of the making of these Orders.
30.
Unless otherwise specified in these Orders, each party shall be entitled to ownership and possession to the exclusion of the other of all other property (including choses-in-action) as is in the possession of such party down to the date he role of, and for this purpose:
(a) each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date;
(b) plant and equipment, household furniture, domestic effects and chattels personal located within or about the real properties are to be the property of the respective transferee thereof;
(c) superannuation entitlements are deemed to be in the possession of the party whose working future provides the conditions for payment out of such entitlements, and each party hereby forgoes any claim either has against the other for any share of superannuation entitlements;
(d) all insurance policies to become the sole property of the beneficiary named therein;
(e) each party to 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
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES THAT:
31.
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, 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.
32.
Pursuant to section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
33.
The value of the transferable benefits to be transferred from the Applicant Husband’s interest to the Respondent Wife’s interest will be calculated by the Trustee of the fund in accordance with regulation 7A.11 of the Superannuation Industry (Supervision) Regulations.
34.
Pursuant to rule 14F of the Family Law Superannuation Regulations 2001, any payments made for the Applicant Husband’s interest in the fund after the Trustee has created a new interest in the Respondent Wife’s name as contemplated by Order 22 are not splittable payments.
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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