WILBURN & WILBURN (No.3)
[2019] FCCA 2373
•22 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILBURN & WILBURN (No.3) | [2019] FCCA 2373 |
| Catchwords: FAMILY LAW – Parental spend-time arrangements – ownership of vehicles – which parent should be paid first from bank funds. |
| Cases cited: Wilburn & Wilburn [2019] FCCA 2131 |
| Applicant: | MR WILBURN |
| Respondent: | MS WILBURN |
| File Number: | DGC 1426 of 2018 |
| Judgment of: | Judge McNab |
| Hearing dates: | 12, 13, 14, 15 March 2019, 1 and 2 April 2019 and 6 August 2019 |
| Date of Last Submission: | 21 August 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 22 August 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: | Macpherson Kelley |
IT IS NOTED that publication of this judgment under the pseudonym Wilburn & Wilburn (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 1426 of 2018
| MR WILBURN |
Applicant
And
| MS WILBURN |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment arises due to the parties being unable to reach agreement on draft orders giving effect to the findings in the judgment delivered on 6 August 2019. None of the issues dealt with by these reasons were the subject of any detailed evidence or submissions at trial.
On 6 August 2019, the Court ordered that:
1. The Applicant provide a draft minute of orders by 4pm 7 August 2019 to the Respondent.
2. The Respondent provide a response to the draft minute of orders by 1pm 9 August 2019.
3. By 4pm 12 August 2019 the parties file an agreed minute or their respective minutes for consideration to the Court.
The parties provided their proposed draft minutes on 12 August 2019. The substantive issues of disagreement were:
in which years the parties spend time with the children for the first half of the long summer holidays as opposed to the second half of the long summer holidays;
in which years the parties spend time with the children from 5pm on Christmas Eve to 3pm Christmas Day as opposed to the years the parties spend time with the children from 3pm Christmas Day to 6pm on Boxing Day;
where change-over of the children should occur (should that not occur at school or child-care);
who should be paid first from the funds held in the Commonwealth Bank accounts ending in #..., #..., #...;
the amount that should be paid out of the above accounts to the parties;
who should own the Motor Vehicle CC; and
whether the Court should include a notation as to the father’s plans to have a yearly holiday in Town SS with the children.
The parties were offered the choice of having these issues determined on the papers (by providing 2 A4 pages of written submissions) or having the matter returning to Court for oral submissions.
The parties chose to have the matter determined on the papers.
The parties provided their written submissions on 21 August 2019 in relation to these issues. These reasons are in short form and assume familiarity with the written submissions.
The summer holidays
By their proposed orders of 12 August 2019, the parties agree that each parent should have half of the summer holidays with the children and that the parties should, each year, alternate between the first and second half of the summer holidays.
The parties are in disagreement as to who should have the first half of the summer holidays as both parties wish to have the first half of the summer holidays which begin in 2019.
The mother should have the children in the first half of the summer holidays in 2019 and then have the children in the second half of the summer school holidays in 2020 (and alternating thereafter).
The mother notes that the father had care of the children in the first half of the summer holidays of 2018/19.
The father led evidence at trial that his workplace was flexible to his parenting responsibilities and otherwise, the father has agreed that both parents alternate the first and second half of the summer holiday period.
The order shall be:
4. The Children spend time and communicate with the Applicant Husband as follows:
[…]
b. For half of all school term and long summer holidays, as agreed, and in default of agreement:
[…]
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;
Christmas
The proposed orders by both parties accept that the children should each spend a portion of Christmas Day with each parent. The parties also agree on how that period should be apportioned, but disagree on who should have the Christmas Eve to Christmas Day period in 2019.
The father’s proposed order of 12 August 2019 sought:
4. The Children spend time and communicate with the Applicant Husband as follows:
[…]
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 even years
ii. from 3.00pm Christmas Day to 6.00pm Boxing Day in odd years;
The mother’s proposed order of 12 August 2019 sought:
4. The Children spend time and communicate with the Applicant Husband as follows:
[…]
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;
The mother’s written submissions of 21 August 2019 did not address this issue.
The father’s submissions do not match his proposed orders. By his submissions dated 21 August 2019, the father seeks to spend Christmas Eve to Christmas Day with the children in 2019, with the mother spending Christmas Day to Boxing Day with the children.
The father makes these submissions on the basis that the mother spent Christmas Eve to Christmas Day with the children in 2018 and that he should spend this time with the children in 2019.
As the father is now seeking orders in the terms proposed by the mother, I will make orders in the terms that the mother proposes. As per above, the order will be:
4. The Children spend time and communicate with the Applicant Husband as follows:
[…]
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;
Changeover location
The father’s proposal is that if the changeover does not occur at school, it is preferable that the children are comfortable in either of the parent’s home rather than waiting at the Town D Post Office (as proposed by the mother). This proposal is sensible.
As drafted by the father, I shall order:
Changeover for the purposes of these orders shall occur at the Children’s respective school / 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.
The Motor Vehicle CC
The Motor Vehicle CC, valued at $5,000, should remain with the father.
The vehicle is currently registered to him. As the father is retaining the farm, and that the vehicle is part of the assets of the business, it is sensible that the vehicle remains in his possession and on the farm. The mother did not contend during the hearing that the vehicle should be transferred to her.
Payment amount
As the father retains the Motor Vehicle CC, the mother will receive $5,000 in cash.
She will, therefore, receive $471,600.
Payment priority from Commonwealth Bank funds
Both parties by their submissions dated 21 August 2019 agree that, of the funds ‘not locked up by the bank’, the mother should be paid first.
Both parties further agree that upon the father refinancing the mortgage over C(2) Street, Town D, the rest of the mother’s and father’s entitlements be paid to them accordingly. As stated by the father:
The rest of the Respondent’s entitlement together with the Applicant’s entitlement accordingly to come upon the refinance being effected
The mother put it similarly:
The rest of [the mother’s] entitlement and the Husband’s entitlement to come upon the Husband’s refinance being effected.
The father seeks a 60 day period for the refinance to occur. The proposed orders agree on this period.
As the parties are in agreement that the mother should be paid first, I will adopt her proposed order (with an adjustment for the payment, reflecting that the mother is not receiving the Motor Vehicle CC):
11. That 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.
Notation for Father’s Town SS holiday plans
It is not appropriate for the Court to make a notation that the children take time off school or child care each year to visit Town SS in …. Children should attend school in the gazetted school terms unless there is some special reason not to do so. Whether an activity is such a special reason is a matter for the parents to determine in accordance with their parental responsibilities and in consultation with the children’s school.
Overnight in week 3
The father is to have overnight time with the children in the third week of the spend-time arrangement. The father seeks an order that this be on a Thursday evening whereas the mother proposes that the weeknight be Wednesday.
As has been noted in Wilburn & Wilburn [2019] FCCA 2131 at [23], the father has limited capacity to parent on days when the cattle market is on. On these days, which occur each Wednesday and every second Thursday morning, the father leaves home very early at around 4am.
It is not practicable for the father to have the children on a Wednesday night as the father may need to be present at the cattle market on Thursday morning. Such an arrangement would prevent him from being able to prepare the children for, and deliver them to, school.
Accordingly, the father’s time will be on Thursday night.
The order shall be:
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.
The Motor Vehicle CC(2)
There has been no evidence at trial about the spare key, any log books or any service records relating to the Motor Vehicle CC(2).
If the spare keys has been lost, each party should pay half of the cost for a replacement key.
Conclusion
These orders will be included in the orders published in Wilburn & Wilburn [2019] FCCA 2131.
It is disappointing that two competent adults could not have agreed on these matters without the assistance and intervention of the Court. These matters were not the subject of evidence or submissions. The controversy regarding these issues, more than likely, has cost each party the equivalent of the average weekly wage to ventilate.
Final orders have been made and it now falls to the parties to conduct themselves so as to avoid further litigation which is to their own and their children’s detriment.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 22 August 2019
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