WORTH & WORTH - [2017] FamCA 227

FAMILY COURT OF AUSTRALIA

WORTH & WORTH

[2017] FamCA 227

FAMILY LAW – CHILDREN – Best interests – With whom the children should live – Where the father has been living in the United Kingdom for sixteen months – Where the son has autism at the extreme end of the spectrum – Where the daughter is on the autistic spectrum – Whether the children should spend increased time with the father – Whether the mother is capable of facilitating a meaningful relationship between the father and children – Where it is in the children’s best interests for the mother to have sole parental responsibility

FAMILY LAW – PROPERTY – Final – Just and equitable to make an adjustment of property interests – Where the parties signed a prenuptial agreement – Where the mother’s legal fees are notionally added back – Where a superannuation splitting order is made – Where an adjustment is made in favour of the mother pursuant to s 75(2)

FAMILY LAW – CONTRAVENTION – Where the father’s Application-Contravention was heard as part of the trial – Where the mother was found to have contravened on some of the counts as alleged

Family Law Act (1975) Cth

M v M (1988) 166 CLR 69
Chorn & Hopkins (2004) FLC 93-204
Omacini & Omacini ((2005) FLC 93-218
Cerini & Cerini [1998] FamCA 143

APPLICANT:

Ms Worth

RESPONDENT:

Mr Worth

INDEPENDENT CHILDREN’S LAWYER:

Janelle Osborne

FILE NUMBER:

BRC

1771

2014

DATE DELIVERED:

13 April 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

20, 21, 22, 23, 24 and
27, & 28 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Rosen Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Osborne
Legal Aid Queensland

Orders

Parenting

Parental Responsibility

(a) That the mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (as amended) (“the Act”)) in respect of the children, M born … 2008 (“M”) and Y born … 2011 (“Y”), (collectively “the children”), save for any decision to move the children to a place of residence that would make it significantly more difficult for the children to spend time with the father as provided in these Orders.
(b) In respect of any issue for which the mother has sole parental responsibility, she shall nevertheless, prior to solely making the ultimate decision on any such issue:
(i)Advise the father in writing of the decision intended to be made before it is made and of her reasons for the decision intended to be made;
(ii)Seek the written response of the father in relation thereto before the decision is made;
(iii)Consider, by reference to the best interests of the child, any such written response prior to making any such decision; and
(iv)Advise the father in writing as soon as reasonably practicable of her ultimate decision…

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 WORTH & WORTH

Details

AGLC: WORTH & WORTH [2017] FamCA 227
Case: [2017] FamCA 227
Decision Date: 13 April 2017

CaseChat Overview and Summary

This case involved a dispute between a mother and father concerning parenting arrangements for their two children, M and Y, and the division of their property. The father had been residing in the United Kingdom for sixteen months, while both children have autism spectrum disorder, with the son being at the extreme end of the spectrum. The court also considered an application by the father alleging contravention of previous orders by the mother.

The primary legal issues before the court were: (1) with whom the children should live and what parental responsibility arrangements should be in place, considering the father's overseas residence and the children's specific needs; (2) whether the mother had contravened parenting orders; and (3) how the parties' property interests should be adjusted, including the impact of a prenuptial agreement and the mother's legal fees.

Forrest J determined that it was in the children's best interests for the mother to have sole parental responsibility for major long-term issues, with specific provisions for the father to be consulted on such decisions and for any relocation that would significantly impede his time with the children to require his written consent. The court found the mother had contravened some of the alleged counts. In relation to property, the court made a final adjustment, including a notional add-back of the mother's legal fees and a superannuation splitting order, finding it just and equitable to make an adjustment in favour of the mother pursuant to s 75(2) of the *Family Law Act 1975*. The children were ordered to live with the mother, with detailed provisions for the father's time with them, including a phased approach to increasing contact and specific arrangements for communication and changeovers.

Orders

Orders of the court

Parenting

Parental Responsibility

(a) That the mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (as amended) (“the Act”)) in respect of the children, M born … 2008 (“M”) and Y born … 2011 (“Y”), (collectively “the children”), save for any decision to move the children to a place of residence that would make it significantly more difficult for the children to spend time with the father as provided in these Orders.

(b) In respect of any issue for which the mother has sole parental responsibility, she shall nevertheless, prior to solely making the ultimate decision on any such issue:

(i) Advise the father in writing of the decision intended to be made before it is made and of her reasons for the decision intended to be made;

(ii) Seek the written response of the father in relation thereto before the decision is made;

(iii) Consider, by reference to the best interests of the child, any such written response prior to making any such decision; and

(iv) Advise the father in writing as soon as reasonably practicable of her ultimate decision and the reasons for that decision.

(c) Any decision to move the children to a place of residence that would make it significantly more difficult for the children to spend time with the father as provided in these orders shall only be made by the mother with the written consent of the father.

Specific Issues

That notwithstanding Order 1, unless otherwise agreed in writing between the mother and the father, the child M shall continue to attend N School, and the child Y shall continue to attend O School.

That the parents are to do all acts and things necessary to keep each other informed about the health of the children including but not limited to:

(a) advising the other parent of the name and contact details of any medical practitioner, health care professional or other treatment providers (including but not limited to: general practitioner, psychiatrist, psychologist, occupational therapist, speech therapist, paediatrician or any other specialist) within 24 hours of any attendance by the child (or the parent without the child but on behalf of the child) upon such person and providing to the other parent at the same time details of the reasons for the attendance, any diagnosis and/or treatment provided, any prognosis given and details (including the name and prescribed dosage) of any medication prescribed;

(b) advising each other immediately in the event that either child should become seriously ill, attend a hospital emergency department, be hospitalised or seriously injured, and in such circumstance, provide the details required in (a):

(i) in person or by telephone immediately; and

(ii) within three (3) hours by way of the communication platform “Our Children” or such other platform as may be agreed between the parents in writing;

(d) advising the other parent at least seven (7) days prior to the time of any appointments made for either of the children to attend upon any medical specialist, or any therapist, including the name of the specialist or therapist, the specialist’s or therapist’s contact details, the reason for the appointment and the date, time and location of the appointment, but, to be clear, the other parent is restrained from attending at such appointments without the prior written consent of the parent who has made the appointment;

(e) upon the first attendance after the date of these parenting orders with either of the children upon any medical practitioner or health care professional or other treatment providers (including but not limited to: general practitioner, psychiatrist, psychologist, occupational therapist, speech therapist, paediatrician or any other specialist and including any the child is already seeing at the date of these orders), authorise that person to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.

Within two school days from the date of these parenting orders, the mother shall provide to the Principal of N School a list of any and all of M’s current medications, the prescribed dosage and details as to when the medication is administered, and she shall inform and keep the Principal informed of any changes to the medications or dosage on the next school day following any such change in the future (even if the medication is not going to be administered at school).

Within two school days from the date of these parenting orders, the Mother shall provide to the Principal of O School a list of any and all of Y’s current medications, the prescribed dosage and details as to when the medication is administered and she shall inform and keep the Principal informed of any changes to the medications or dosage on the next school day following any such change in the future (even if the medication is not going to be administered at school).

(a) Within two weeks from the date of these parenting orders, the mother shall authorise any school, out of school hours child care provider or extra-curricular activity provider either of the children currently attends to provide the father with any information the father might request that they are lawfully able to provide about the children that the father may request of them and this order shall serve as such authority and the mother shall inform the father in writing of the details, including correct name, address and contact telephone number, of any out of school hours child care provider or extra-curricular activity provider either of the children currently attends and she shall provide written confirmation to him that she has provided the authorisation this Order requires.

(b) Each parent shall inform the other parent in writing of any new out of school hours child care provider or extra-curricular activity provider that either child begins attending within 24 hours of the commencement of such attendance including details of the correct name, address and contact telephone number of the new provider, and the parent who has instigated the attendance shall immediately authorise the new provider to give the other parent, as the other parent may request, any information that they are lawfully able to provide about the children, (including but not limited to the option to purchase school photographs, obtain newsletters, access online updates about the children) and this order shall serve as such authority and the parent who has instigated the attendance shall provide written confirmation to the other parent that he or she has provided the authorisation this Order requires as soon as that authorisation has been provided.

If there is a cost to a school, a provider of health care, out of school hours child care, or extra-curricular activity associated with the provision to the father or the mother of any information or documents under these parenting orders that cost shall be borne by the parent requesting the provision of the information or documents.

Subject to any conditions imposed by the children’s schools, educational facility or extra-curricular provider, these orders authorise both parents to attend functions and events to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews, save that the father shall only be authorised to attend such functions and events in respect of M at the express invitation of the Principal of the N School.

Each parent is restrained from denigrating the other parent or any member of the other parent’s family to, or in front of, or within the hearing of, either of the children and shall direct third parties to refrain from denigrating either party or any member of the other parent’s family to, or in front of, or within hearing of, either of the children and failing their compliance with such a direction shall remove the children from that environment immediately.

10.

Neither parent shall discuss these proceedings with or in the presence or hearing of the children or either of them.

11.

The father shall not consume alcohol during any time he spends with either of the children nor for 12 hours prior to spending time with either of them.

12.

Neither party shall provide either of the children with any prescription medication unless they hold a current prescription for that medication which was obtained from a medical practitioner currently treating the child and whenever the children or either of them are in the father’s care he shall administer any medication provided to him by the mother for either of the children in accordance with the prescription as conveyed to him by the mother, whether he approves of the child being on that medication or not.

13.

(a) Within six months of the date of these parenting orders the mother shall complete a Parenting Orders Program with Relationships Australia and provide documentary evidence to the father that she has done so.

(b) Within six months of the date of his return to live in Australia the father shall complete a Parenting Orders Program with Relationships Australia and provide documentary evidence to the mother that he has done so.

14.

The mother and father shall do all acts and things necessary to register and maintain an account with the online communication platform “Our Children” (www.ourchildren.com.au) or such other similar service as may be agreed in writing between the parties (“the communication service”), and unless otherwise specified in these orders, they shall use the communication service for exchanging information and documents as required by these orders, and for such purpose:

(a) each parent shall register with the communication service within three days of the date of these parenting orders;

(b) each parent shall do all acts and things necessary to ensure the other parent has access to the information and documents they enter into the platform;

(d) communication completed by way of the service shall be deemed to be communication in writing for the purposes of these parenting orders.

15.

Each parent shall keep the other parent informed of their residential address, mobile telephone contact number, Skype profile and details necessary for the communication service at all times, including but not limited to notifying the other parent within 24 hours of any change to any of those things, save for a change of residential address, details of which shall be provided to the other parent in writing at least 14 days prior to any such change.

16.

The mother and father shall each be permitted to provide to the Principal of each of the children’s schools and any medical practitioner or health care professional or other treatment providers (including but not limited to: general practitioner, psychiatrist, psychologist, occupational therapist, speech therapist, paediatrician or any other specialist), a copy of these parenting orders but not the property adjustment orders herein.

17.

The Independent Children’s Lawyer shall be permitted to provide a copy of these parenting orders but not the property adjustment orders herein and reasons for judgment to the Principal of N School (M’s school), Dr D (M’s treating psychiatrist), and Dr A (Y’s treating psychiatrist).

18.

The Independent Children’s Lawyer shall also be permitted to provide a copy of these parenting orders but not the property adjustment orders herein to the Principal of O School (Y’s school).

Live with

19.

The children shall live with the mother.

Communication

20.

Y shall communicate with the parent she is not with at the time by webcam (such as Skype, Facetime or similar) each Tuesday at 6.00 pm Queensland time and each Saturday at 9.00 am Queensland time (unless 9.00 am is a changeover time); with Y to initiate the call, and with the parent she is with at the time to facilitate the communication by providing her with access to a personal computer, lap top computer, tablet (such as an iPad) or smart phone (such as an iPhone) and helping her to establish a connection and contact with the other parent and then giving her privacy to communicate with the other parent.

21.

After M has begun spending time with the father as provided in paragraph 32 of these parenting orders he shall be permitted to communicate with the parent he is not spending time with at the same time as Y communicates in accordance with paragraph 20.

Changeover

22.

Unless specified otherwise, or otherwise agreed, changeover for the purpose of these parenting orders for the children (or either of them) to spend time with their father shall occur by the mother delivering them to the changeover location at the beginning of the time, and by the father returning them to the changeover location at the end of the time, where the changeover location shall be outside Coles supermarket, at Q Centre, Suburb P.

IF THE FATHER LIVES IN BRISBANE

Spends time with

23.

The children shall spend time with the Father in accordance with orders 24 to 38 on the conditions that:

(a) the father is living within 30 kilometres of M’s school, currently N School; and

(b) the father provides the mother 14 days’ notice in writing of his intention to commence time with the children in accordance with these parenting orders.

Spending time - Y

24.

That subject to special occasion time, the child Y shall spend time with the father at all times as agreed between the mother and the father and failing agreement, in the following stages:

(a) for 8 weeks, each Saturday from 1.00 pm until 5.00 pm;

(b) following completion of time in (a), for 8 weeks, each Sunday from 9.00 am until 5.00 pm; and for the first 4 hours of any special occasion time that falls within this period;

(d) following completion of time in (c), for 8 weeks, each alternate weekend from after school Friday (or 3.00 pm if not a school day) to 5.00 pm Sunday;

(e) following completion of time in (d), during school terms:

(i) in the first week of the fortnight, from after school Thursday (or 3.00 pm if not a school day) to commencement of school the following Monday (or 9.00 am if not a school day), commencing on the first weekend of each new school term.

School holidays - Y

25.

For the first school holiday period after Y has spent at least 2 weekends with the father in accordance with 24(e), Y shall spend time with her father from after school on Friday which is the last day of term, or immediately follows the last day of term, to 2.00 pm on the following Wednesday.

26.

For the second school holidays after Y has spent at least 2 weekends with the father in accordance with 24(e), and thereafter during school holidays, Y shall live with her parents for school holiday periods as follows:

(a) in even numbered years, the first half of the holidays with the mother and the second half with the father; and

(b) in odd numbered years, the first half of the holidays with the father and the second half with the mother;

(i) when a parent’s time falls in the first half of the holidays, from after school on the day the school term finishes and conclude at 5.00 pm on the day calculated to be the day on which the half way point of the holidays falls;

(ii) when a parent’s time falls in the second half of the holidays, from 5.00 pm on the day calculated to be the day on which the half way point of the holidays falls ending at 9.00 am on the day the school term recommences;

(iii) school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00 am on the day the children return to school and should the half way point of any holidays calculated in this way ever occur at midnight then that half way point shall be, for the purposes of this paragraph of these parenting orders, deemed to fall on the day that is concluding at that midnight hour.

Special Occasions

27.

Notwithstanding any previous orders, Y shall spend time with her parents on special occasions, as follows:

(a) Christmas day, commencing in 2017:

(i) In odd numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day with the Father, and from 3.00 pm Christmas Day until 3.00 pm Boxing Day with the mother; and

(ii) In even numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day with the mother, and from 3.00 pm Christmas Day until 3.00 pm Boxing Day with the father;

(b) Easter, commencing in 2018:

(i) In odd numbered years from 9.00 am Good Friday to 5.00 pm Easter Saturday with the mother and from 5.00 pm Easter Saturday to 5.00 pm Easter Monday with the father; and

(ii) In even numbered years from 9.00 am Good Friday to 5.00 pm Easter Saturday with the father and from 5.00 pm Easter Saturday to 5.00 pm Easter Monday with the Mother;

(i) If a school day, from after school until 4.30 pm with the father and from 4.30 pm to 6.00 pm with the mother;

(ii) If a non-school day, from 9.00 am to 1.00 pm with the mother and from 1.00 pm to 5.00 pm with the father;

(d) On the mother’s birthday, commencing in 2018:

(i) If a school day, from after school until 6.00 pm with the mother;

(ii) If a non-school day, from 9.00 am to 5.00 pm with the mother;

(e) On the father’s birthday, commencing in 2018:

(i) If a daycare/school day, from after school until 6.00 pm with the father;

(ii) If a non-school day, from 9.00 am to 5.00 pm with the father;

(f) With the mother on Mother’s Day from 9.00 am to 5.00 pm;

(g) With the father on Father’s Day from 9.00 am to 5.00 pm.

28.

Unless otherwise specified, special occasion time shall commence for Y, once the father has spent time with Y in accordance with paragraph 24 (b) of these parenting orders, and shall commence for M, once the father has spent time with M in accordance with paragraph 29 of these parenting orders.

Spending Time - M

29.

For the first two calendar months following the making of these orders, M shall spend time with the father:

(a) each Tuesday and Friday from after school to 3.00 pm at N School (in accordance with paragraphs 34 to 38 of these parenting orders) should the father be able to make it, allowing for any employment he may have, and should he not be able to get the time to spend this time with M then the two month period provided for in this paragraph shall extend to three months; and/or

(b) from 9.00 am to 1.00 pm each Saturday on the condition that such time takes place in the company of a respite carer with whom M is familiar (that carer having spent at least two previous sessions with M or with M and the mother) and for such purpose:

(i) the mother shall do all acts and things necessary to gain the permission of the respite carer for the father to attend in accordance with these orders or to arrange a respite carer who will provide such service;

(ii) the father shall follow all reasonable directions of the respite carer including allowing the respite carer to nominate venue and activity;

(iii) the mother shall deliver M and the respite carer to the changeover location at the beginning of the time and collect M at the end of the time;

(iv) if a Government funded provider of respite care will not provide this service and the respite carer has to come from a commercial provider, the father shall meet the cost of the provision of such service, including the cost of the first two sessions the respite carer spends with M and the mother before M and the respite carer begin to spend time with the father.

30.

Following completion of the time provided for in paragraph 29 of these parenting orders, for two calendar months, M shall spend time with the father:

(a) each Tuesday and Friday from after school until 3.15 pm at N School (in accordance with paragraphs 34 to 38 of these parenting orders) should the father be able to make it, allowing for any employment he may have, and should he not be able to get the time to spend this time with M then the two month period provided for in this paragraph shall extend to three months; and/or

(ii) the father shall follow all reasonable directions of the respite carer including allowing the respite carer to nominate venue and activity;

(iii) the mother shall deliver M and the respite carer to the changeover location at the beginning of the time and collect M at the end of the time;

31.

Following completion of the time provided for in paragraph 30 of these parenting orders, for two calendar months, M shall spend time with the father:

(b) from 9.00 am to 1.00 pm each Saturday.

32.

Following completion of the time in paragraph 31 of these parenting orders, M shall spend time with the father:

(a) from 9.00 am to 3.00 pm each Saturday during school terms; and

(b) during school holidays, each Saturday from 9.00 am to 3.00 pm when Y is spending time with the Father pursuant to these parenting orders;

(c) for special occasions, for the first 6 hours of any period that Y spends with the Father in accordance with these orders.

33.

Commencing in 2018, both Y and M shall spend time with the father on M’s birthday:

(a) If a school day, from after school until 4.30 pm with the father and from 4.30 pm to 6.00 pm with the mother;

(b) If a non-school day, from 9.00 am to 1.00 pm with the mother and from 1.00 pm to 5.00 pm with the father.

34.

Time at N School (M’s school), shall occur if it occurs at all, at the times and on the days specified in the above paragraphs of these parenting orders, on the following conditions:

(a) all time to be spent at school is subject to the ongoing approval of the Principal of Suburb P State Special School (“the Principal”);

(b) time at school shall only occur on the days that M would ordinarily be attending school (ie during school terms and not on school holidays or pupil free days);

(d) the time shall commence immediately after school on the first Tuesday following the making of these orders or such other date as nominated by the Principal;

(e) the father shall attend the playground outside M’s classroom at the commencement of the time;

(f) the father shall return M to the mother at the entry gate to the playground nearest the K Street Car Park at the end of the time;

(g) for the first two calendar months, the duration of the time shall be 30 minutes, and thereafter the duration of the time shall be 45 minutes or as otherwise agreed between the parents and the Principal;

(h) The mother and father shall do all acts and things necessary to encourage and facilitate M spending time with his father including but not limited to:

(i) working with the Principal to create and implement a transition plan/social story about M spending time with his father;

(ii) speaking positively with M and in his presence about the transition plan/social story;

(iii) providing the Principal with photographs or other resources reasonably requested by him for the purpose of any transition plans/social stories for M;

(i) The mother and the father shall each:

(i) Contact the Principal by 2.30 pm on the third school day following the making of these orders; and

(ii) Arrange an appointment for preparation of a transition plan/social story;

(iii) Attend any appointments made with the Principal;

(iv) Comply with any appointments made by the Principal for time;

(v) Comply with all reasonable rules of the school; and

(vi) Comply with all reasonably requests or directions of N School staff and Principal.

35.

In the event that the Principal offers to facilitate time between the father and M only at times which are less regular than specified in these orders then time will be spent at the times which are nominated by the Principal.

36.

The father shall not attend the school or its vicinity before the time with M is to start and shall promptly leave the school and the vicinity when his time with M is ended.

37.

The mother shall not attend the school or its vicinity before the time she is to collect M, and shall promptly leave the school and vicinity after collecting M.

38.

The period of time to be spent provided for in these orders may vary by reason of the closure of school such as for school and public holiday periods, and in such event, time will be spent at times when the school can facilitate the time.

WHILE THE FATHER IS LIVING OUTSIDE OF BRISBANE (CURRENTLY IN UNITED KINGDOM)

39.

While the father is living outside of Brisbane the children shall spend time with the father in accordance with paragraphs 40 to 42 of these parenting orders.

40.

The children shall spend time with the father on the conditions that:

(a) he provides to the mother at least 28 days’ notice in writing of his intention to travel to Brisbane, and the duration of his stay (up to 28 days); and

(b) prior to spending time with the children (other than M at school), he provides to the mother in writing the address where he will be staying while in Brisbane; and

(c) these provisions shall apply for periods up to 28 days in duration, and occur on no more than five times per calendar year.

41.

Subject to paragraph 40 of these parenting orders, Y shall spend time with the Father:

(a) during school terms each Saturday from 1.00 pm to 5.00 pm, and each Sunday from 1.00 pm to 5.00 pm;

(b) during school holidays each Saturday, Sunday, Monday and Tuesday from 1.00 pm to 5.00 pm during the first week, and from 9.00 am to 5.00 pm in the second and subsequent weeks.

42.

On the condition that the father provides to the Principal of N School at least 28 days’ notice in writing of his request to do so, and provides a copy of that request to the mother, M shall spend time with the father in accordance with paragraph 29 of these orders and on the conditions set out in paragraphs 34 to 38 of these orders.

Interpretation

43.

For the purpose of all of these orders, “school terms” shall mean the Queensland Gazetted school terms, and “school holidays” shall mean the Queensland Gazetted school holidays.

44.

The Independent Children’s Lawyer is discharged.

NOTATION:

A. If within two years of the making of these orders, either parent applies for a parenting order in relation to either child, it is requested that the matter be listed before his Honour Justice Forrest if at all practicable.

B. If a contravention application is filed in relation to these orders, it is requested that the matter be listed before his Honour Justice Forrest if at all practicable.

Property Adjustment

45.

All of the father’s right title and interest in the following property is hereby transferred to the mother and the mother shall retain these as her sole property absolutely:

(i) The two German motor cars currently in her possession; and

(ii) All the furniture, chattels and other items of personal property currently in her possession;

(iii) Any monies in bank accounts in her name.

46.

All of the mother’s right, title and interest in the following property is hereby transferred to the father and the father shall retain these as his sole property absolutely:

(i) All the furniture, chattels and other items of personal property currently in his possession;

(ii) Any monies in bank accounts in his name.

47.

The mother shall pay the father the sum of $19,000 being the total amount he paid to R Children’s Contact Service in payment for the supervision of his time with the child, Y, but same shall be paid by the mother by way of deduction by $19,000 in the amount she will receive from the monies currently held on trust for the mother and the father pursuant to these property adjustment Orders and an increase by $19,000 in the amount the father will receive from those monies.

48.

By way of property adjustment and further adjustment in compliance with the previous Order, the mother and the father shall take all steps necessary to jointly authorise the solicitors currently holding the net proceeds of sale of their former jointly owned real property on trust for them to pay to the mother or at her direction the sum of $194,009.31 plus 65 per cent of any interest earned on the principal sum invested since it was invested and to pay the balance of the principal sum invested and any interest earned to the father or at his direction.

49.

Pursuant to s 90MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the father’s (Mr Worth) interest in the Sunsuper Superannuation Fund, the mother (Ms Worth) shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $36,586.06 (thirty six thousand five hundred and eighty six dollars and six cents) and that there be a corresponding reduction to the entitlement the father would have had in the Sunsuper Superannuation Fund but for this Order.

50.

Paragraph 49 binds the Trustee of the Sunsuper Superannuation Fund and that Order takes effect from the operative time being the fourth business day after the date of service of a sealed copy of these Orders upon the Trustee of the Fund.

51.

Each party and the Trustee of the Fund has liberty to apply on not less than three (3) business days’ notice, in respect to the implementation of the super splitting orders.

52.

Other than as provided herein, the father shall retain his superannuation interests solely and the mother shall retain her superannuation interests solely.

53.

The mother shall indemnify and shall keep the father indemnified against any liability in respect of any and all debts in her name.

54.

The father shall indemnify and shall keep the mother indemnified against any liability in respect of any and all debts in his name.

Costs of the Contravention Proceedings

55.

The mother shall also pay the father’s costs of and incidental to the filing and prosecution of his contravention application filed 7 September 2015 on a party and party basis as agreed or as assessed pursuant to the Family Law Rules 2004.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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