Wylie and Falconer - [2017] FCCA 1404

FEDERAL CIRCUIT COURT OF AUSTRALIA

WYLIE & FALCONER

[2017] FCCA 1404

Catchwords:
FAMILY LAW – Parenting & property – relocation – small asset pool – section 75(2) factors given greater weight.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 65D, 65DAA, 65DAB, 65DA, 69ZT, 75(2)

Cases cited:

Morgan and Miles (2007) FLC 93

Palmer & Hammer(No.2) [2011] FamCAFC 196

Starr & Duggan [2009] FamCAFC 115
Sayer & Radcliffe [2012] FamCAFC 209
MRR v GR [2010] HCA 4

Applicant:

MS WYLIE

Respondent:

MR FALCONER

File Number:

DNC 457 of 2015

Judgment of:

Judge Young

Hearing date:

9 November 2016

Date of Last Submission:

16 December 2016

Delivered at:

Adelaide

Delivered on:

23 June 2017

REPRESENTATION

Counsel for the Applicant:

Ms Farmer

Solicitors for the Applicant:

Withnalls Lawyers

Counsel for the Respondent:

Mr Bond

Solicitors for the Respondent:

Maley Barristers & Solicitors

ORDERS

Parenting

That all previous interim parenting Orders be discharged.
That the parties have equal shared parental responsibility for the children X, born (omitted) 2009 and Y, born (omitted) 2010 (“the children”).
The children live with the mother and the children spend time with the father during school terms from the conclusion of school on Wednesday until the commencement of school on the following Monday in each alternate week.
That during school holidays the children spend time with the parties as follows:
(a)With the father for the first half of term 1, 2 and 3 school holidays in each year and with the mother for the second half; and
(b)In even years from 16 December to 09 January the following year and in odd years from 23 December to 13 January the following year.
That Orders 3 and 4 be suspended on the following days of significance and the children spending time as follows:
(a)With the Respondent father on Father’s Day from 10am to 5pm and with the mother from 10am to 5pm on Mother’s Day.
(b)With the mother on (omitted) in each year from 10am to 4pm if a non-school day and from after school until 5pm on a school day.
(c)With the father on (omitted) in each year 10am until 4pm on a non-school day and from after school until 5pm on a school day.
(d)With the party who is not ordinarily spend time with the children on their birthdays on (omitted) and (omitted) of each year from 10 – 2pm on a non-school day and from after school until 5pm on a school day.
Changeovers are to take place at the children’s school. The party who has spent time with the children shall deliver the children to school in the morning, and the other party shall collect the children from school in the afternoons after school.
Any other changeover on a non-school day shall occur at McDonalds Family Restaurant, (omitted) at 12pm.
The children are at liberty to communicate with the father on the telephone or Skype at all such times as the children reasonably request but otherwise Wednesday at 5.30pm and Saturday at 5.30pm central…

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 Wylie and Falconer

Details

AGLC: Wylie and Falconer [2017] FCCA 1404
Case: [2017] FCCA 1404
Decision Date: 23 June 2017

CaseChat Overview and Summary

This matter concerned parenting and property disputes between Wylie and Falconer, heard by Judge Young. The court was required to make orders regarding the children's living arrangements, time spent with each parent, communication protocols, and the division of various assets and liabilities.

The court determined the specific terms of equal shared parental responsibility, outlining the children's living arrangements with the mother and the father's time with them during school terms and holidays. It also established detailed provisions for special days, changeovers, communication between parents and children, and parental responsibilities concerning the children's health, education, and travel. In relation to property, the court addressed the distribution of funds held in trust, the transfer of vehicles and a camper trailer, and the division of various investments, including bank accounts, recreational vehicles, and superannuation interests.

The court applied principles of the *Family Law Act 1975* to make orders for the children's best interests and to achieve a just and equitable division of the parties' property. This included specific provisions for the division of superannuation, the indemnification of liabilities, and the retention of certain assets by each party. The orders also mandated participation in a parenting program and restrained the use of physical punishment.

Orders

Orders of the court

Parenting

That all previous interim parenting Orders be discharged.

That the parties have equal shared parental responsibility for the children X, born (omitted) 2009 and Y, born (omitted) 2010 (“the children”).

The children live with the mother and the children spend time with the father during school terms from the conclusion of school on Wednesday until the commencement of school on the following Monday in each alternate week.

That during school holidays the children spend time with the parties as follows:

(a) With the father for the first half of term 1, 2 and 3 school holidays in each year and with the mother for the second half; and

(b) In even years from 16 December to 09 January the following year and in odd years from 23 December to 13 January the following year.

That Orders 3 and 4 be suspended on the following days of significance and the children spending time as follows:

(a) With the Respondent father on Father’s Day from 10am to 5pm and with the mother from 10am to 5pm on Mother’s Day.

(b) With the mother on (omitted) in each year from 10am to 4pm if a non-school day and from after school until 5pm on a school day.

(c) With the father on (omitted) in each year 10am until 4pm on a non-school day and from after school until 5pm on a school day.

(d) With the party who is not ordinarily spend time with the children on their birthdays on (omitted) and (omitted) of each year from 10 – 2pm on a non-school day and from after school until 5pm on a school day.

Changeovers are to take place at the children’s school. The party who has spent time with the children shall deliver the children to school in the morning, and the other party shall collect the children from school in the afternoons after school.

Any other changeover on a non-school day shall occur at McDonalds Family Restaurant, (omitted) at 12pm.

The children are at liberty to communicate with the father on the telephone or Skype at all such times as the children reasonably request but otherwise Wednesday at 5.30pm and Saturday at 5.30pm central standard with the father to initiate the call to the mother’s mobile telephone and the mother to ensure that the children are available to receive the call.

The children are at liberty to communicate with the mother on the telephone or Skype at all such times as the children reasonably request but otherwise each Wednesday at 6pm and Saturday at 5.30pm with the mother to initiate the call to the father’s mobile telephone and the father to ensure that the children are available to receive the call.

10.

That in years when the children are travelling to Victoria to spend time with the mother’s extended family the children will be made available to speak to the father between 5.30pm and 6.30pm on Christmas Day with the father to initiate the call to the mother’s mobile telephone and the mother to ensure that the children are available to receive the call.

11.

Unless agreed in writing, the parties shall communicate via email or SMS text message only with such communications to be limited to the welfare of the parties’ children only.

12.

Each party is to keep the other informed of their mobile telephone number, email and residential address at all times and inform the other in writing of any changes to these details within forty-eight (48) hours of such change.

13.

Each party keep the other informed of the names and addresses of any treating medical practitioner, other health practitioner and/or dental practitioner in relation to the children.

14.

Each party notify the other party by telephone or SMS text message in the case of serious illness, hospitalisation and/or accident.

15.

Each party provide all required authority and consent to each health practitioner and school and/or tutor attended by the children to allow both parties to undertake parent/teacher interviews, to discuss the education of the child, to forward to both parties copies of all school reports and notices concerning activities to be undertaken by the children, and to permit the parties to attend any school and extracurricular activities which they are invited to attend.

16.

Each party shall sign a passport application or passport renewal for the children within fourteen (14) days of a written request of the other party to do so.

17.

The children’s passports shall be held by the mother. The passports shall be provided to the other party (“the travelling party”) for the purpose of international travel within fourteen (14) days of a request in writing by the travelling party and returned to the party (“non-travelling party”) who holds the passport forthwith upon return to Australia.

18.

If either party wishes to take the children out of the Northern Territory the following provisions apply:

(a) That the travelling party must provide at least twenty-one (21) days’ notice in writing to the non-travelling party, together with a copy of the proposed itinerary, address and telephone contact details (whilst interstate or abroad) and proposed return flight / travel details;

(b) If the non-travelling party is caused to miss out on time they would ordinarily spend with the children as a result of such interstate or international travel, then they shall be entitled to “make up time” as soon as reasonably practicable upon the children’s return to the Northern Territory.

19.

That the parties are to consult each other to consult each other and agree on a single counsellor to provide counselling for the children.

20.

That each party is restrained from using physical punishment on the children.

21.

That the parents undertake and complete the Anglicare ‘For the Kids’ parenting program as follows:

(a) Each parent, within seven days (7) of the date of these Orders are to enrol in the course;

(b) The parents will attend all sessions of the course and comply with all reasonable directions of the course providers;

(c) At the conclusion of the course each parent provide the Court and the other parent with a certified copy of the certificate of completion.

22.

That the mother continue to receive such medical treatment as is recommended by her treating doctors.

Property

23.

That the sum of $50,282.24 held in Withnalls Lawyers trust account be paid as follows:

(a) Payment to the husband of $5,000.

(b) Balance to be paid to the wife.

24.

That within seven (7) days the husband transfer to the wife the Toyota (omitted) NT registration (omitted).

25.

That within seven (7) days of compliance with Order 23, the husband facilitate access for the wife to secure possession of and sign any documents necessary to transfer to the wife the (omitted) camper trailer.

26.

That within seven (7) days the wife do all acts and sign all documents necessary to transfer to the husband all right, title and interest in the party’s (omitted) Vacation Club membership and the husband shall indemnify the wife with respect to the loan.

27.

That the wife be entitled to retain for her sole use and benefit the following investments:

(a) Her personal music Equipment;

(b) (omitted) Camper Trailer;

(d) Suzuki (omitted) Motorbike.

(e) Suzuki (omitted) Motorbike;

(f) All monies standing to her credit in her personal bank accounts;

(g) All household contents and jewellery in her possession; and

(h) All member entitlements in the Wife's (omitted) Superannuation account.

28.

That the husband be entitled to retain for his sole use and benefit the following investments:

(a) All monies standing to his credit in bank accounts in the Respondent’s sole name;

(b) (omitted) boat;

(d) Honda (omitted) motorbike;

(e) (omitted) motor bike;

(f) All monies standing to his credit in his personal bank accounts;

(g) All household contents and jewellery within his possession;

(h) All member entitlements in the husband’s (omitted) Super account not subject to these orders.

29.

The (omitted) jet ski and the (omitted) trailer are to be sold and the proceeds of sale divided equally between the parties.

30.

The husband will indemnify the wife in relation to any liability for any and all loans, credit cards, hire purchase agreements and line of credit in his sole name as at the date of these Orders including the following:

(a) (omitted) Bank Loan number (omitted);

(b) (omitted) Bank Loan for the purchase of a (omitted) motorbike;

(d) (omitted) MasterCard number (omitted); and

(e) (omitted) Salary Solutions for Toyota (omitted).

31.

That pursuant to the s.90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable with respect to the husband’s superannuation interest in (omitted) Super Member Number (omitted) (“fund”):

(a) The wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 as to forty seven thousand nine hundred and forty seven dollars ($47,947) out of the husband’s fund; and

(b) There be a corresponding reduction in the entitlement of the husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.

32.

Whenever the Trustee of the Fund makes a splittable payment out of the husband’s interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 1 of these Orders in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

33.

These Orders have effect from the operative time and the operative time is four days after the date of the service of a certified copy of these Orders.

34.

That having been accorded procedural fairness in relation to the making of these Orders, the Orders are binding on the Trustee of the Fund.

35.

That unless specified in these Orders and except for the purpose of enforcing the payment of money due under this or subsequent Order:

(a) Each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and

(b) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this order

36.

That unless otherwise specified in these Orders, each party shall be solely liable for all loans, credit cards, mortgages and any other liability, in that person’s sole name as at the date of these Orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.