Ackerley & Ackerley
[2021] FedCFamC1F 78
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ackerley & Ackerley [2021] FedCFamC1F 78
File number(s): SYC 7181 of 2018 Judgment of: ALTOBELLI J Date of judgment: 28 September 2021 Catchwords: FAMILY LAW – CONTRAVENTION – Alleged contravention of final parenting orders – Contravention established – No reasonable excuse established – Less serious contravention – Order for imposition of a bond for a period of six months without security and without surety. Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NBA, 70NEB, 70NEC, 70NECA Cases cited: In the Marriage of Gaunt (1978) FLC 90-468; [1978] FamCA 97
Mitty & Mitty [2012] FamCA 32
Seaward & MacDuff [2011] FamCA 1041
Stevenson v Hughes (1993) FLC 92-363; [1993] FamCA 14
Taikato v the Queen (1996) 186 CLR 454; [1996] HCA 28
Division: Division 1 First Instance Number of paragraphs: 57 Date of last submission/s: 1 July 2021 Date of hearing: 1 July 2021 Place: Sydney Solicitor Advocate for the Applicant: Mr Reeve Solicitor for the Applicant: Marsdens Law Group Solicitor Advocate for the Respondent: Mr Holmes Solicitor for the Respondent: Holmes Donnelly & Co Solicitors ORDERS
SYC 7181 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ACKERLEY
Applicant
AND: MS ACKERLEY
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
28 SEPTEMBER 2021
THE COURT FINDS THAT:
1.On 26 July 2020 Ms Ackerley contravened without reasonable excuse Order 4.2 of the orders made by consent on 19 June 2020.
2.On 11 December 2020 Ms Ackerley contravened without reasonable excuse Order 5.10 of the orders made by consent on 19 June 2020.
3.On 29 January 2021 Ms Ackerley contravened without reasonable excuse Order 4.5 of the orders made by consent on 19 June 2020.
THE COURT ORDERS THAT:
4.Within seven days of the date of these orders, the Respondent enter into a bond without surety and without security for a period of six months on the following conditions:
(a)The Respondent be of good behaviour; and
(b)The Respondent comply with any current and future parenting orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ackerley & Ackerley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case is about a child, X, born in 2011. X is 10 years old. She lives with her mother, and spends time with her father pursuant to orders made by consent on 19 June 2020. These reasons for judgment explain the orders that the Court has made after hearing X’s father’s contravention application filed on 9 February 2021. It is regrettable that this matter proceeded to hearing, notwithstanding this Court’s earnest suggestion that there was a better way to deal with the issues at hand.
BACKGROUND
The father is the Applicant in this case. He is 53 years old. The mother is the Respondent, and she is 51 years old. X is their only child. The parents separated in 2018. On 19 June 2020 final property and parenting orders were made by consent. The impression formed from the totality of the evidence is that the settlement of the parenting aspect of the case was assisted by a single joint expert report prepared by Dr J in October 2019, as well as the ongoing involvement of Ms L with the family in a therapeutic capacity.
The parents agreed to have equal shared parental responsibility, and for X to live with each of her parents on the following basis. In terms 3 and 4 of 2020, X was to live with her father from after school on Friday to before school on Wednesday each alternate week (five nights) and then by term time 2021, from after school on Friday to before school on Thursday each alternate week (six nights). X was to live with her mother at all other times during the term. By 2022, X’s time was to be week-about with changeover at school on Fridays. In terms of school holidays, by the June/July 2020 school holidays, X was to live with her father for a block of five nights, and a block of six nights. By the September/October 2020 school holidays, X was to live with her father for a block of six nights. By the December 2020/January 2021 school holidays, X was to live with her father for blocks of seven nights, two nights, seven nights, and a further seven nights. X was to live with her mother at all other times during those school holiday periods. The orders also provided for X to spend time with her father on special occasions. The orders made by consent on 19 June 2020 are reproduced in the first schedule to these reasons for judgment.
The father contends that breaches of the orders commenced from the June/July school holidays in 2020.
By the time of the hearing of this matter the father pressed three alleged contraventions.
He contends firstly, that in contravention of Order 4.2 of the orders made on 19 June 2020, on 26 July 2020 at about 1:10pm the mother, without reasonable excuse, removed X from the father’s care during time that she was to be with her father. The mother denies this.
The father further contends that in contravention of Order 5.10, on 11 December 2020 at about 9:30am the Respondent mother, without reasonable excuse, failed to make X available to the father. The mother denies this.
Finally, the father contends that contrary to Order 4.5, on 29 January 2021 at 3pm, the Respondent mother, without reasonable excuse, failed to make X available to the father. The mother contends that there was a contravention but that she had a reasonable excuse.
Curiously, and in contrast to the intensity with which this application was pursued and defended, neither parent suggested that the Court should use its powers under s 70NBA of the Family Law Act 1975 (Cth) (‘the Act’) to vary the existing orders. Indeed, the Court was informed that notwithstanding the difficulties that led to the present application, X had spent school holiday time with her father the week before the contravention hearing in accordance with the orders, without incident.
THE HEARING
Both parents were capably represented by experienced family lawyers—Mr Reeve for the father, and Mr Holmes for the mother.
Both parents were cross-examined. The father gave his evidence cooperatively and succinctly. The mother was often unresponsive, at times pervasively so. They were cross-examined about relatively recent events, so memory does not provide a plausible explanation for different recollections of events and discussions. The Court finds that where the evidence of the parents conflicts in relation to relevant significant events, the father’s evidence is to be preferred. The mother frequently lapsed into being an advocate for her own cause, whereas the father was more objective and cogent.
There was a tendency at times to stray from relevant evidence. A contravention application necessarily focuses on specific events which were to occur at specific times. The genesis of the orders sought to be enforced, and the parents’ words, beliefs and actions subsequent to those specific events did not assist the Court to ascertain, for example, whether there was a reasonable excuse at the relevant time.
EVIDENCE
The father relied on the following documents in support of his case:
(a)His Application – Contravention filed 9 February 2021;
(b)His Affidavit filed 9 February 2021;
(c)The single expert report of Dr J dated 17 October 2019; and
(d)Pinpointed paragraphs in the single expert report, marked as exhibit A1.
The mother relied on the following documents in support of her case:
(a)Her Affidavit filed 27 April 2021;
(b)The single expert report of Dr J dated 17 October 2019; and
(c)A tender bundle, marked as exhibit R1.
APPLICABLE LAW
The applicable law in respect of failure to comply with orders that affect children is contained in Div 13A of Pt VII of the Act. Section 70NAC sets out what must be established to satisfy a Court that a contravention took place:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
The standard of proof that applies in determining whether a person has contravened an order, and if they are found to have contravened, whether the person had a reasonable excuse for doing so, is proof on the balance of probabilities (s 70NAF of the Act).
Reasonable excuse
If a contravention is established, the Court must then determine whether the respondent has demonstrated that he/she had a reasonable excuse for failing to comply with the orders. A ‘reasonable excuse’ is defined in s 70NAE of the Act as:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
…
(4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The High Court’s comments in Taikato v the Queen (1996) 186 CLR 454 at 466 (cited in a family law context in cases such as Seaward & MacDuff [2011] FamCA 1041 and Mitty & Mitty [2012] FamCA 32), are of assistance in relation to the interpretation of the term “reasonable excuse”:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception…
…
However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of Parliament and give effect to their own ideas of what is a “reasonable excuse” in cases…..
(Footnotes omitted)
THE FIRST ALLEGED CONTRAVENTION: 26 JULY 2020
The Applicant father contends that contrary to Order 4.2 made on 19 June 2020, on 26 July 2020 the mother without reasonable excuse removed X from his care, during his time. Order 4.2 states:
4. That X shall live with each of the parents during school term time:
…
During School Term Time – Terms 3 & 4 2020
4.2.With the father from after school or 3pm on Friday 24 July 2020 for a period of 5 nights to before school or 9:30am on the following Wednesday morning, and each alternate Friday to Wednesday thereafter until the conclusion of Term 3 2020.
The father’s evidence about this is found at paragraphs 39-51 of his affidavit. The mother’s evidence is found at paragraphs 38-54 of her affidavit.
The thrust of the father’s complaint is that the mother removed X from his care, without his consent, from about 1:10pm until 3pm on 26 July 2020 immediately after a sports event in which X was participating and in fact was awarded a prize. In substance, the mother does not deny that this took place. She deposes that she took X home at about 12:40pm, and returned her to the father at about 2pm. From the Court’s perspective, nothing turns on the differences in timing. The difference is probably attributable to imperfect memory, rather than anything else. The key factor is that the mother agrees that notwithstanding the terms of the order, X did not spend time with her father for a period of time that she says was one hour and 20 minutes, but which the father says was one hour and 50 minutes.
The mother denied the allegation, even though her own evidence clearly concedes that the time did not occur. The mother says she did everything she could to facilitate X going back to her father. Her evidence does not support that.
The focus then turns to whether the mother acted with a reasonable excuse. If there is a reasonable excuse, it is to be found in the mother’s affidavit from paragraphs 46 onwards. She deposes that as both she and the father were walking towards their cars with X, X started to appear very tired, held her head down, started walking slowly, and repeated at least five times: “Mummy, I want to come home with you”. The mother says that, in effect, she told X that she could not come home with her because it was her time with the father. Nonetheless, the mother deposes that X’s resistance increased to the point where she eventually started crying uncontrollably.
She contends that the father said: “I’m not going to force her to go with me”. Such a statement is consistent with the father’s evidence in cross-examination in which he said he would not force X to go with him, if she did not want to. What he explained, however, and this is the substance of his case in this regard, is that the mother failed to properly encourage X to come with him. The father said in cross-examination words to the effect of “I expect a level of encouragement which was not present”. According to the father’s affidavit X showed no resistance to coming home with him until the mother made certain comments “… in a loud and emotional voice in the presence of X”. He contends that X only got into the mother’s car because she was ordered to do so by the mother. The mother denied this in cross-examination. The Court prefers the father’s evidence over the mother’s.
The mother was cross-examined about this event, and in particular her engagement with Ms L in a therapeutic capacity both before and after the day in question. The mother would not agree that Ms L had counselled her against attending the event in question. That, however, is inconsistent with a letter of Ms L dated 12 September 2020 (annexure C to the father’s affidavit). The mother conceded that the document in question made it very clear that Ms L did not think it was a good idea for the mother to attend the event in question. Eventually the mother conceded in cross-examination that in her discussions with Ms L there was an alleged agreement that if the mother did attend the event in question, she would leave immediately. In cross-examination the mother agreed that she did not leave immediately, and decided to stay because it was X’s first sports event and she had been awarded a prize. The mother steadfastly refused to accept the suggestion that she had unsettled X by remaining longer than necessary. All the mother was prepared to concede was that she had underestimated how tired X would be after the event.
The Court finds that the mother contravened the order in question, on the day alleged, without reasonable excuse. The finding of the contravention is based on the mother’s own evidence. The Court finds that, for the purposes of s 70NAC of the Act, she contravened the order intentionally. No reasonable excuse is established on her evidence. There is no suggestion that the mother did not understand the obligations imposed on her by the order. There is no suggestion on the evidence that the mother’s actions were necessary to protect the health or safety of the child. X was probably tired after her first sports event. She may have been resisting returning to her father’s care. It is likely that something the mother said contributed to X’s resistance. None of this detracts from the Court’s finding that there were no issues of the health or safety of the child. The mother knew she should not have been there in the first place. Nonetheless, it is understandable that she would want to see her daughter perform in public at her first sports event. It would have been a total delight to see X earn a prize. Notwithstanding all of this, she knew she had to leave immediately and she failed to do so.
The Court finds that the father has established to the Court’s satisfaction that the first alleged contravention took place.
THE SECOND ALLEGED CONTRAVENTION: 11 DECEMBER 2020
The father alleges that contrary to the terms of Order 5.10 of the orders made on 19 June 2020, on 11 December 2020 at 9:30am the mother, without reasonable excuse, failed to make X available to him. The mother denies that she contravened the order. Order 5.10 states:
5.That unless otherwise agreed in writing between the parents, X shall live with each of the parents during school holidays as follows:
…
December 2020/January 2021 School Holidays
…
5.10.With the father for 7 nights from 9:30am on 11 December to 9:30am on 18 December 2020;
The father’s evidence in this regard is found at paragraphs 60-77 of his affidavit. The mother’s evidence is found at paragraphs 64-92 of her affidavit.
The father contends that X was to be with him for seven nights from 9:30am on 11 December 2020 until 9:30am on 18 December 2020. He attended N Town McDonald’s to collect X from the mother, arriving in the car park at about 9:25am. He deposes to exiting his vehicle and walking towards X, who was standing next to the mother adjacent to the mother’s car. He deposes that X said to him words to the effect that she only wanted to stay three or four nights with him. The father explained to her that both parents had agreed on the arrangements. He asked the mother: “Ms Ackerley, is she coming with me?” He deposes that the mother responded: “I am not going to convince her.” After about 10 minutes he drove away.
The father deposes at length to what took place in the days afterwards. Whilst none of this affects the central question of whether or not there was a contravention without reasonable excuse on 11 December 2020, the Court notes that there was communication between the parents, they met again, and X again would not go with her father. The parties’ lawyers and the police were involved, there was an attendance on a doctor, and the father deposes that X eventually went into his care on Wednesday, 16 December at about 9:30am. The mother contends X went into the father’s care at 8.30am on Tuesday, 15 December 2021. The father returned X to the mother’s care, consistent with the orders, at 9:30am on Friday, 18 December 2020. It is important to note that the issue for the Court is whether or not the contravention was established at a particular time on a particular date, and not what may have occurred afterwards.
The mother’s account about the key events is not that different to the father’s. She agrees that on the morning in question X told her father that she did not want to go with him, and only wanted to stay three or four nights. The mother deposes to seeking to encourage X to go, and the thrust of her evidence is that notwithstanding her encouragement to X, she simply would not go and became increasingly distressed, was struggling to breathe, was panting, and speaking with a raised voice. The mother agrees that X did not go with her father as required by the order.
The mother agrees that she attended N Town Police Station because: “I felt scared by the situation and the email I received from Mr Ackerley’s solicitor”. The mother contends that when the father arrived, and in the presence of a Senior Constable, X told her father that she did not want to go.
The mother also gives contextual evidence about X’s increasing anxiety and resistance to spending time with her father commencing from the evening of 10 December 2020. She deposed to X saying things in an anxious and tentative tone, rubbing her hands together in an agitated manner, not sitting down or sitting still, sobbing, being in an emotional state, crying until she fell asleep, tossing and turning throughout the night, and squealing out in her sleep. The mother deposes that when X woke up she told her: “I had so many nightmares mummy and my tummy is so sore, I feel sick.”
When the father was cross-examined, he agreed that on 11 December 2020 the mother physically presented X to him, but insisted that she was not made available to him in an emotional sense because she would not come into his care. When it was suggested to him that X was palpably distressed, he insisted that he did not see that, and she was certainly not in the frenzy that was contended. He strenuously rejected the proposition that the mother did everything she possibly could to facilitate X coming into his care, and that X’s behaviour was consistent with the anxiety disorder that she suffered.
The mother was cross-examined. She agreed that X relied on her for emotional security, though not solely. She agreed that X looks to her for approval, and in certain circumstances picks up her stress. When it was suggested that Ms L thought that X continues to worry about her mother, she said she did not know. Nonetheless, she accepted that Ms L had advised her that the changeover should be conducted swiftly. She would not agree with the proposition that the purpose of swift changeovers was to avoid the possibility of X prevaricating, and she disagreed with the contention that she increased X’s anxiety and made it less likely that she would go to her father by prolonging the changeovers.
Turning to the event in question, it was put to the mother that when she exited her car, she knew that X would not go to her father. She agreed that this was the case, on this occasion. The mother agreed that at the point of X’s resistance she, the mother, put her arm around X’s shoulder. In cross-examination it was suggested to her that in the context of X’s resistance, the mother’s actions communicated support for her decision. The mother replied that her action was to support X as she was upset, not to support her decision not to spend time with her father.
The mother was cross-examined about her critical attitude of the father recorded, for example, in Dr J’s report. When asked whether that was an opinion she still held of the father, she said words to the effect of “they are fair”, which the Court reasonably infers to be a reference to her criticisms of the father. It was suggested that X had called her father a liar, to which the mother agreed. It was suggested that X was in fact picking up the mother’s attitude towards the father, which the mother denied.
The mother agreed that she had been given advice by Ms L and Dr K, both before and after the event in question, that she should tell X that her father loves her and that she should go with him, and then she, the mother, should simply leave. It was put to the mother that notwithstanding this that is not what she in fact does. The mother responded that she had not abruptly departed, as advised, because of X’s emotional state, given that she was sobbing and hyperventilating. The mother then said words to the effect of: “It is not in X’s best interests for her to see me leave when she’s in that state.” It was suggested to her that at the point when the mother should have said goodbye to X, and practised some ‘tough love’ X was not in fact hyperventilating, or sobbing. The mother agreed.
It was suggested to the mother that when she did not leave immediately she knew that this would increase the likelihood of resistance by X to going with her father. The mother responded with words to the effect of: “At that time, I didn’t believe it was in her best interests.” This was an example of the mother’s many unresponsive answers in cross-examination. The Court finds that the mother knew it was likely that, by not leaving immediately, she was increasing the likelihood of X’s resistance.
The Court finds that the mother contravened Order 5.10 on 11 December 2020 at 9:30am without reasonable excuse. The finding of contravention is based on the mother’s own evidence. The finding of absence of reasonable excuse is likewise based on the mother’s own evidence.
X may well have been presented for changeover in a physical sense. It was the mother’s responsibility to do so. However, it was also the mother’s responsibility to present X for changeover in an emotional state such that made it conducive to the changeover actually occurring. As Fogarty J, sitting on the Full Court in Stevenson v Hughes (1993) FLC 92-363 and positively citing the primary judge’s reasons for judgment, explains (at 79,815–79,816):
Section 112AB(1) provides in effect that where a person is bound by an order such as an access order, a breach may occur where that person makes no reasonable attempt to comply with the order. That is a statutory statement of the obligation but I thought that her Honour explained aspects of that in several passages of her judgment which I think should be reproduced. Her Honour said this: —
“There is also implicit in every order for access an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact occurs.”
Then there is the following passage which, although lengthy, is worthy of being repeated and it is as follows: —
“I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: `You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter.
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.”
THE THIRD ALLEGED CONTRAVENTION: 29 JANUARY 2021
The father alleges that without reasonable excuse on 29 January 2021 at about 3pm, and contrary to Order 4.5 of the orders made on 19 June 2020, the mother failed to make X available to him. The mother admits this contravention but contends that she has a reasonable excuse.
For present purposes, the focus will be on the mother’s evidence. She deposes that pursuant to the orders X was to spend time with her father for six nights from the conclusion of school on Friday, 29 January 2021 to the commencement of school the following Thursday, 4 February 2021. She concedes that she breached this order but says she had a reasonable excuse. On the morning of 29 January X was upset and crying and said a number of times that she did not want to go to school because she did not want to go to her father’s. The mother insisted that X go to school and that she would have a fun time with her father afterwards. X was still crying when they got in the car to drive to school, so much so that she started hyperventilating. The mother was so concerned that she took her to a medical centre where she had a telephone consultation with a doctor she had not previously seen before. The doctor spoke initially to the mother and then to X. The mother deposes to hearing X say to the doctor: “I don’t want to see my daddy because he pushed me and yelled at me and my tummy is now hurting.” The mother deposes to the doctor advising her that X was not in a fit state to attend school and that the mother needed to call child protective services, otherwise known as the Department of Communities and Justice (‘DCJ’), immediately. She did so, and spoke to a case manager who suggested that based on what she was told there was a risk of significant harm to X. The case manager only advised that the mother should obtain legal advice. The mother rang Law Access, spoke to a staff member and deposes to having received advice as follows: “…Under the circumstances, it is our view that there was a ‘reasonable excuse’ for not facilitating the time due to the harm and the welfare of X.” The mother followed the advice of DCJ and Law Access and did not take X to school.
The mother gives evidence about subsequent communication with the father, but these later events do not throw light on whether she acted with a reasonable excuse.
The mother was cross-examined. She agreed that X’s consultation with the doctor was by telephone, and was with a doctor in the practice who they had never seen before. She did not know if the doctor had read X’s file. She agreed that it was the doctor’s advice that led her to ring the DCJ. The mother agreed that this was the authority responsible for notifications of children at risk of harm, and that they investigate allegations of abuse. She agreed that the relevant disclosure made by X was that her father pushed her and yelled at her, and that those were the words used by X. The mother agreed that she did not make a telephone call until the following day, 30 January. It is common ground that the DCJ took no further action.
The mother agreed that she was already aware about the pushing allegations, dating back to 30 December 2020, but the first report to the DCJ was not until 30 January 2021. The mother accepted that the first reference in her evidence to the pushing allegations is in paragraph 119, referring to the morning of 3 January 2021 when X said to her: “I never want to see Daddy again because I don’t feel safe and he pushed me and he is a liar.” This was the event that she told the case manager about. The mother agreed that she did not observe the event in person but contended that it took place during a FaceTime call between her and X, and she observed it through the call. The mother agreed that X’s comments followed her father asking X to get off the phone call to her mother which had gone for 40 minutes, in the context of the weekend where 47 text messages had been exchanged between them, as well as eight telephone calls.
The mother agreed that notwithstanding her awareness of the allegations by X, she presented X to spend time with her father after the December event, but before 29 January 2021.
The mother accepted that she sought legal advice from someone she had never met before, and who had no access to or knowledge of the litigation before the Court. The person did not have access to Dr J’s report or any other documents that provided any context.
In cross-examination the mother explained that the allegations of pushing and yelling were first and foremost in her mind in deciding not to facilitate time with the father. She also took into account the advice from the case manager, the doctor, and the lawyer.
She agreed, however, that she still presented X to spend time with the father the weekend before. She agreed that the only new information she had was from the doctor, case manager, and lawyer, all of whom were unfamiliar with the case. She insisted she would do the same again and denied that any underlying animosity towards the father contributed to her decision.
The Court finds that the mother had no reasonable excuse for not facilitating time with the father on the day in question. There was no reasonable basis for the mother to be concerned about the health or safety of X in her father’s care. The Court accepts the submissions made on behalf of the father that the mother’s actions on or about 29 January 2021, and her reliance on reasonable excuse, were disingenuous. The following extract from the Full Court’s decision in In the Marriage of Gaunt (1978) FLC 90-468 at 77,398 is apposite:
The essential question is this — can a party who does not agree with a Court's decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child's welfare is, of course, the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court's order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
The matters complained of by X were raised a month earlier and the mother saw no basis for not facilitating time with her father, or taking X to a doctor, or making a report to the DCJ, or seeking legal advice.
IMPOSITION OF PENALTY?
The father sought the imposition of a bond to secure compliance with the orders but otherwise without penalty.
This case is covered by Pt VII Div13A Subdiv E of the Act. It is a contravention without reasonable excuse, but a less serious contravention. Under s 70NEB(d) the Court is empowered to order the person who committed the contravention to enter into a bond in accordance with s 70NEC. The bond may be for up to two years, may be with or without surety or security, and may be on conditions that require the person to be of good behaviour. In this regard the good behaviour involves compliance with the existing parenting orders.
The Court agrees with the father that in this case a bond should be imposed, without surety and without security, on the condition that the mother be of good behaviour, which in this case means compliance with the parenting orders in place from time to time. The Court will require the bond to be entered into for a specified period of six months.
The mother needs to understand that if she either fails to enter into the bond, or having entered into the bond, fails to act in accordance with the bond, there are potentially serious ramifications for her. Failure to enter into the bond may involve the consequences referred to in s 70NECA of the Act. The purpose of the bond is to secure compliance with an existing parenting order, in this case an order that she consented to herself. If she fails to act in accordance with the bond, one possible ramification is that she will be held to account for her contraventions in subsequent proceedings, and thus risk the imposition of more serious penalty.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 28 September 2021
SCHEDULE A
FAMILY LAW ACT 1975
IN THE FAMILY LAW COURT
AT AUSTRALIA
No. SYC 7181/2018
BETWEEN
MR ACKERLEY
(Applicant)
and
MS ACKERLEY
(Respondent)
and
INDEPENDENT CHILDREN'S LAWYER
CONSENT ORDERS
THE COURT NOTES THE FOLLOWING FOR THE PURPOSE OF THESE ORDERS:
A. The Court notes the following definitions for the purpose of these Final Orders:
1.“the Applicant Husband/father” means Mr Ackerley born … 1968.
2.“the Respondent Wife/mother” means Ms Ackerley born … 1969.
3.“the Parties” means the Applicant Husband and the Respondent Wife.
4.“X/the child” means the parties’ child X born on … 2011.
5.“the Town G Property” means the property known as and situated at F Street, Town G, New South Wales being the whole of the land contained in Folio Identifier … and registered in the Applicant Husband’s sole name.
6.“the Town G Mortgage” means the mortgage number … registered by Westpac Banking Corporation against the Town G Property, which mortgage secures the home loans with C Bank of Australia in the Applicant’s sole name.
7.“the Town G Caveat” means the Caveat registered against the Town G property by the Respondent Wife with registration number ….
8.“the joint bank Accounts” means all funds in the C Bank accounts in the Parties joint names, including but not limited to C Bank account numbered …05 and …69.
9.“the Applicant’s Bank Accounts” means all funds in bank accounts in the Applicant’s sole name or in which the applicant has an interest with any bank or financial institution in Australia or overseas, including but not limited to his C Bank accounts.
10.“E Pty Ltd” means the company E Pty Ltd with ACN … of which the Applicant Husband is sole Director, Secretary and shareholder.
11.“D Pastoral Company Pty Ltd” means the company D Pastoral Company Pty Ltd with ACN … of which the Applicant Husband is sole Director, Secretary and the parties are joint shareholders.
12.“D Holdings Pty Ltd ATF Ackerley Family Trust” means the company D Holdings with ACN … of which the Applicant Husband is sole Director, Secretary and the parties are joint shareholders and which company is the Trustee Company for the Ackerley Family Trust.
13.“the Applicant’s Superannuation” means the applicant’s entitlement in or investment with any superannuation fund in Australia or overseas including but not limited his interest with M Super Fund.
14.“the Applicant’s furniture, furnishings and personal effects” means all items of furniture, furnishings and effects in the applicant’s possession and/or control.
15.“the Applicant’s loans” means the Applicant’s loans related to the Applicant’s Business including but not limited to the R Bank Investment Loans and the S Finance Loans.
16.“the Applicant’s credit cards” means all credit cards in the Applicant’s sole name including but not limited to his O Bank, P Finance, Q Bank, C Bank, and ANZ Credit Cards.
17.“the Applicant’s ATO debt” means all funds owing to the Australian Taxation Office by the Applicant Husband personally or through his companies E Pty Ltd, D Pastoral Company Pty Ltd, D Holdings Pty Ltd.
18.“The invoices from B” means the Invoices for accounting services by B & Associates issued to the Applicant via the entities E Pty Ltd, D Pastoral Company Pty Ltd, D Holdings Pty Ltd.
19.“the Respondent’s bank accounts” means all funds in bank accounts in the respondent’s sole name or in which the respondent has an interest with any bank or financial institution in Australia or overseas, including but not limited to her CBA accounts.
20.“the Respondent’s Superannuation” means the respondent’s entitlement in any superannuation fund in Australia or overseas.
21.“the Respondent’s Furniture, Furnishings and personal Effects” means all items of furniture, furnishings and personal effects in the Respondent’s possession and/or control.
22.“the Respondent’s credit cards” means all credit cards in the Respondent’s sole name including but not limited to her CBA Mastercard.
23.“the Respondent’s personal loans” means the Respondent’s personal loan owing to her parents.
24.“Act” means the Family Law Act 1975.
B.Pursuant to Section 81 of the Act, the Applicant and the Respondent intend that these Orders shall finally determine the respective rights of the Parties to seek Orders for alteration of property interests under the Act and avoid future proceedings between them in relation to property settlement.
C.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
BY CONSENT IT IS ORDERED
Parenting and Property
1.That all previous Orders be discharged.
2.That all outstanding Applications be dismissed.
Parenting
3.That the mother and father have equal shared parental responsibility for X.
4.That X shall live with each of the parents during school term time:
During School Term Time Term 2 2020
4.1.With the father from after school on Thursday 18 June to before school on Monday 22 June 2020.
During School Term Time – Terms 3 & 4 2020
4.2.With the father from after school or 3pm on Friday 24 July 2020 for a period of 5 nights to before school or 9:30am on the following Wednesday morning, and each alternate Friday to Wednesday thereafter until the conclusion of Term 3 2020.
4.3.With the father from after school or 3pm on Friday 16 October 2020 for a period of 5 nights to before school or 9:30am on the following Wednesday morning, and each alternate Friday to Wednesday thereafter until the conclusion of Term 4 2020.
4.4. With the mother at all other times.
During School Term Time – 2021
4.5.With the father from after school or 3pm on Friday 29 January 2021 for a period of 6 nights to before school or 9:30am on the following Thursday morning, and each alternate Friday to Thursday thereafter until the conclusion of Term 4 2021. The father’s 6 night block period is to commence from the first Friday of each Term and each alternate week thereafter.
4.6. With the mother at all other times.
During School Term Time – 2022 and onwards
4.7.That from the commencement of Term 1 2022 X shall live with each parent on an equal shared care basis, being week on week off from after school Friday to before school Friday the following week, with X spending time with the father for the first week from Friday 28 January 2022.
5.That unless otherwise agreed in writing between the parents, X shall live with each of the parents during school holidays as follows:
June/July School Holidays 2020
5.1.With the mother for 5 nights from the conclusion of school on 26 June 2020 to 9:30am on 1 July 2020;
5.2.With the father for 5 nights from 9:30am on 1 July 2020 to 9:30am on 6 July 2020;
5.3.With the mother for 6 nights from 9:30am on 6 July 2020 to 9:30am on 12 July 2020;
5.4.With the father for 6 nights from 9:30am on 12 July 2020 to 9:30am 18 July 2020; and
5.5.With the mother from 9:30am to 18 July 2020 until the commencement of school on 20 July 2020.
September/October School Holidays 2020
5.6.With the mother for 7 nights from the conclusion of school on 25 September 2020 to 9:30am on 2 October 2020;
5.7.With the father for 6 nights from 9:30am 2 October 2020 to 9:30am on 8 October 2020;
5.8.With the mother for 4 nights from 9:30am 8 October 2020 to the commencement of school on 12 October 2020.
December 2020/January 2021 School Holidays
5.9.With the mother for 2 nights from the conclusion of school on 9 December 2020 to 9:30am on 11 December 2020;
5.10.With the father for 7 nights from 9:30am on 11 December to 9:30am on 18 December 2020;
5.11.With the mother for 4 nights from 9:30am on 18 December to 9:30am on 22 December 2020;
5.12.With the father for 2 nights from 9:30am on 22 December 2020 to 8pm on 24 December 2020;
5.13.With the mother for 3 nights from 8pm on 24 December 2020 to 9:30am on 27 December 2020;
5.14.With the father for 7 nights from 9:30am on 27 December 2020 to 9:30am on 3 January 2021;
5.15.With the mother for 10 nights from 9:30am on 3 January 2021 to 9:30am 13 January 2021;
5.16.With the father for 7 nights from 9:30am on 13 January 2021 2020 to 9:30am on 20 January 2021;
5.17.With the mother for 7 nights from 9:30am 20 January 2021 to the commencement of school on 27 January 2021.
April School Holidays 2021
5.18.With the father for 3 nights from after school on 31 March 2021 until 5pm on Saturday 3 April 2021;
5.19.With the mother for 8 nights from 5pm on 3 April 2021 to 9:30am 11 April 2021;
5.20.With the father for 7 nights from 9:30am 11 April 2021 to 9:30am 18 April 2021;
5.21.With the mother for 1 night from 9:30am 18 April 2021 to the commencement of school on 19 April 2021.
June/July Holidays 2021
5.22.With the father for 6 nights from after school on 18 June 2021 until 9:30am on 24 June 2021;
5.23.With the mother for 8 nights from 9:30am 24 June 2021 to 9:30am 2 July 2021;
5.24.With the father for 6 nights from 9:30am 2 July 2021 to 9:30am 8 July 2021;
5.25.With the mother for 3 nights from 9:30am 8 July 2021 to the commencement of school on 11 July 2021.
September/October Holidays 2021
5.26.With the mother for 8 nights from after school on 16 September 2021 to 9:30am 24 September 2021;
5.27.With the father for 4 nights from 9:30am 24 September 2021 to 9:30am 1 October 2021;
5.28.With the mother for 3 nights from 9:30am 1 October 2021 to the commencement of school on 4 October 2021.
December 2021/January 2022
5.29.With the father for 1 night from the conclusion of school on 8 December to 9:30am on 9 December 2021;
5.30.With the mother for 8 nights from 9:30am 9 December 2021 to 9:30am on 17 December 2021;
5.31.With the father for 7 nights from 9:30am 17 December 2021 to 8pm on 24 December 2021;
5.32.With the mother for 8 nights from 8pm 24 December 2021 to 9:30am on 1 January 2022;
5.33.With the father for 8 nights from 9:30am 1 January 2022 to 9:30am on 9 January 2022;
5.34.With the mother for 5 nights from 9:30am 9 January 2022 to 9:30am on 14 January 2022;
5.35.With the father for 7 nights from 9:30am 14 January 2022 to 9:30am on 21 January 2022;
5.36.With the mother for 7 nights from 9:30am 21 January 2022 to 9:30am on 28 January 2022.
School Holidays from conclusion of Term 1 2022
5.37.X shall live with each parent for half of each of the shorter school holiday periods from the conclusion of Term 1 2022. For the purposes of calculating the school holiday period it shall commence from 3:15pm on the final day of the school term and conclude at 8:45am on the first day that school resumes.
5.38.The parties shall continue the week about arrangements during term time and school holidays at the conclusion of Term 4 2022, in accordance with Order 5.6.
5.39.That for the longer Christmas school holiday period at the conclusion of Term 4 2023 and each longer Christmas school period thereafter X shall live with each parent for half of each school holiday period in alternating two week block periods, with the parent with whom X was not living with in the week prior to end of school term having the first two weeks of the school holidays.
Special Occasions
6.That contrary to any other Orders, X shall spend time with each parent for special occasions as agreed in writing between the parents and failing agreement as follows:
6.1.With the mother on Mothers’ Day from 10am to 5pm;
6.2.With the father on Fathers’ Day from 10am to 5pm;
6.3.On X’s birthday, the parent with whom X is not otherwise living with pursuant to these Orders shall spend time with X:
6.3.1.If her birthday falls on a school day, from the conclusion of school until 6pm.
6.3.2.If her birthday falls on a non-school day, from 5pm the day prior to 11am the day of.
6.4.For the mother’s birthday from after school or 3pm on a non-school day on … until before school or 9:30am on a non-school day on … each year.
6.5.For the father’s birthday from after school or 3pm on a non-school day on … until before school or 9:30am on a non-school day on … each year.
6.6.For the maternal grandmother’s birthday the child shall spend time with the mother and maternal grandmother from 10am to 2pm each year.
6.7.For the paternal grandmother’s birthday the child shall spend time with the father and paternal grandmother from 10am to 2pm if it falls on a non- school day, or from after school to 6pm if it falls on a school day.
6.8.For Easter:
6.8.1.With the father from after school or 5pm on Easter Thursday to 5pm on Easter Saturday in odd years and from 5pm on Easter Saturday to 5pm Easter Monday in even years.
6.8.2.With the mother from after school or 5pm on Easter Thursday to 5pm on Easter Saturday in even years and from 5pm on Easter Saturday to 5pm Easter Monday in odd years.
6.9. For Christmas:
6.9.1.With the father from 9am on 22 December to 8pm on 24 December each year;
6.9.2.With the mother form 8pm on 24 December to 9am on 27 December each year.
Changeovers
7.That unless otherwise specified in these Orders changeover shall occur at X’s school during term time. For the purposes of non-school days, unless otherwise agreed in writing between the parents changeover shall occur at McDonalds N Town.
Extra-curricular activities
8.That each party shall take all reasonable steps to facilitate the child’s participation in any extra-curricular activities that may be engaged in by the child when the child in their care.
International and InterState Travel
9.That either parent is permitted to take the child outside the Commonwealth of Australia or NSW/ACT for the purpose of a holiday provided:
9.1.The occasions on which the relevant parent takes the child out of the Commonwealth of Australia or NSW/ACT coincides with the normal school holiday period and the time that parent is ordinarily to be spending time with the child unless otherwise agreed in writing.
9.2.X shall not travel outside of the Commonwealth of Australia for more than two consecutive weeks in the longer Christmas School Holidays until she reaches the age of 12 and there shall not be any overseas travel during the period of 24 December to 26 December.
9.3.That until X reaches the age of 12 in the event she suffers from an accident, serious illness and or injury resulting in admission to hospital or require specialist medical and/or nursing care for a period, whilst overseas with either parent, the travelling parent is to notify the non-travelling parent of the illness or injury immediately and the non-travelling parent shall be shall be afforded the opportunity to travel to the destination which, in the event the father is the travelling parent, he will meet the mother’s costs of travel.
9.4.The travelling parent gives to the other parent as much notification as possible of their intention to take the child out of the Commonwealth of Australia and in any event will not give less than fourteen (14) days written notice of such intention.
9.5.The travelling parent gives the other parent an itinerary to include the departure and return dates, the flight details, copies of travel insurance together with evidence of payment, visa documents (if applicable), details of country or countries the travelling parent and the child will be travelling to, the dates on which they will arrive and depart each country (if applicable), an address, telephone number at which the child can be contacted in each country and the names of any other person travelling with the child not less than fourteen (14) days prior to the proposed departure date.
9.6.That the travelling parent bare all costs (flights, accommodation, insurances, taxes, charges, spending money and the like) incurred on behalf of the child for the trip.
9.7.The travelling parent is permitted to travel with the child to any Country unless the Department of Foreign Affairs and Trade does advise against travel to such a destination and, the proposed destination is party to the Hague Convention and provided the Commonwealth of Australia maintains a High Commission in such a Country.
10.The parties will do all things and sign all documents necessary to obtain a passport for the child and ensure it is renewed regularly.
11.In the event the father travels overseas with the child pursuant to Order 8 the mother shall deliver the passport to the father 48 hours prior to the departure time and the father shall return the passport to the mother within 48 hours of his return to Australia.
Other Orders
13.The child may communicate with each parent at such times she so wishes and the other party shall facilitate and encourage such communication by telephone, in writing, or by other electronic means including but not limited to email and if the facility exists, and the party wanting it provides it, webcam or video conference.
14.That each party shall be entitled to receive the following information in respect of the child as follows:
14.1.Details of all appointments, within 12 hours of appointments being made, and or reports prepared by a specialist medical doctor, psychiatrist, psychologist, counsellor or therapist;
14.2.Copies of any reports, notices, advices or other communications in relation to the child’s education and well-being;
14.3.Copies of all school reports, reports on progress and behavioural issues and other school circulars in relation to the child;
14.4.Copies of all notices received from the child’s school or religious group/church and details of functions, parent/teacher nights or meetings involving the child, and any other activities to which parents are invited;
14.5.Information as to medical treatment (including counselling) received by the child;
14.6.Information as to the child’s co-curricular and extra-curricular activities including the names of the clubs, associations or activities in which they are enrolled.
14.7.Copies of such documents, notices or details of events are to be provided to the other parent as soon as practicable and in any event no later than the beginning of the following spend time period.
15.These Orders constitute authority for any school attended by the child to furnish both parties with copies of all reports, photographs, memoranda, newsletters, correspondence and invitations to school events to which parents are usually invited and upon request by the other, each party must authorise any school attended by the child to furnish both parents with such documents or other communications of significance for the schooling and ancillary events related to the child.
16.Each parent will notify the other, forthwith and as a matter of urgency, of any serious injury or illness suffered by the child whilst in the care of that parent.
17.Each parent will notify the other, not more than 24 hours after any change to their landline and/or mobile telephone numbers and/or their email address and as soon as practical but not less than 2 weeks prior to a change in address.
18.Both parents are restrained from denigrating the other or denigrating any relative or friend of either parent, in the presence or hearing of the child or permitting any other person to do so, including members of the school community.
19.Both parents are restrained by injunction from speaking with the child or allowing her to overhear or see any filed documents in these proceedings.
20.The parties will use their best endeavours to ensure that X completes her homework whilst in their respective care.
21.Each parent is responsible for ensuring that X is not exposed to adult themes or the behaviour of older relatives that she is not developmentally equipped to understand.
22.Each parent is responsible for ensuring that, should they place X in the care of friends and relatives, that those people do not refer to issues between the parents in front of X.
23.In the event that either parent becomes unavailable to care for the child for any reason for a period longer than 24 hours, including illness or emergency, the unavailable parent will first contact the other parent and enquire as to whether or not that parent is available to care for the child during the period of unavailability, before making arrangements for any other person to care for the child.
24.Each parent will ensure that all communication with the other parent is respectful.
25.Each parent is responsible for laundering and ensuring that school uniforms and accessories are ready for X as she moves between each household.
26.Should either parent become concerned about any information or behaviour that X may be exposed to, or are unable to agree on any parenting matter, they will first seek to address that with the other parent in a respectful manner. If either parent is not satisfied with the result, they will seek assistance through therapy. If they are unable to agree in that forum, formal mediation should be the next step before consulting any legal practitioner.
Property
Lump Sum Property Payments
27.That by these Orders the parties hereby authorise and direct Holmes Donnelly to pay the funds held in the Controlled Money Account on behalf of the parties to the Respondent Wife or as she may otherwise direct.
28.That by this Order the parties hereby authorise and direct T Lawyers to release the funds held in their Trust Account to pay their outstanding invoice.
29.That within 28 days of the date of these Orders the Respondent Wife will do all things and sign all documents necessary to remove the Town G Caveat.
30.That within 7 days of the date of these Orders the Applicant Husband shall pay the following amounts to the Respondent Wife:
30.1. $4,000 on account of the Respondent’s Wife’s legal costs;
30.2.$2,400 for spouse maintenance payments from 1 June 2020 to 11 June 2020.
31.That within 28 days of the date of these Orders the Applicant Husband shall do all things and sign all documents necessary to transfer his airline points to the Respondent Wife.
32.That the Applicant Husband pay the Respondent Wife the sum of $150,000.00 in fifty
-four (54) equal monthly instalments of $2,777.00 per month ($641 per week), with the first payment due on 1 June 2020 (“First Instalment Date”), and monthly thereafter on the first day of each month. In the event the Applicant Husband is able to meet the full payment of $150,000.00 earlier than the date which is fifty-four (54) months after the First Instalment Date then the Applicant Husband may pay the Respondent Wife any outstanding balance as a lump sum.
33.That within one hundred (100) days of the Respondent’s Wife compliance with Order 29, the Applicant Husband shall pay to the Respondent Wife the sum of eight five thousand, forty hundred and two dollars ($85,402).
34.That in the event any payments due to the Respondent Wife in Orders 32, 33 and 39, are not made by the Applicant, then within twenty-eight (28) days of default (“the Listing Date”), the Parties shall do all things and sign all documents necessary to effect an immediate sale of the Town G property as follows:
34.1.List the Town G property to be sold by private treaty, with such agent as the Parties may agree. The Respondent Wife is to nominate 3 agents from which the Applicant Husband is to choose 1 within 72 hours of the nomination.
34.2.That the listing price be agreed on between the parties, taking into account the advice of the agent; and
34.3.The parties shall instruct a solicitor as agreed in writing between the Parties to have the conduct of the sale. For the purposes of agreement, the Respondent Wife will nominate 3 solicitors from which the Applicant Husband is to choose 1, within 72 hours of the nomination.
35.That upon settlement of the sale of the Town G property, the proceeds of the sale shall be paid in the following manner and priority:
35.1.All costs and expenses of sale including legal costs and disbursements, Agent’s commission, and valuer’s fees (if applicable);
35.2.The amounts required to pay all municipal and water rates outstanding with respect to the Town G property;
35.3.Payment of any money due and owing to the mortgagee;
35.4.The balance then remaining to be distributed between the parties as follows:
35.4.1.Any amounts unpaid by the Applicant Husband to the Respondent Wife pursuant to Orders 32 and 33 to the Respondent Wife, plus interest pursuant to the Family Law Rules; and
35.4.2.The balance remaining to the Applicant Husband.
36.In the event the payment to the Respondent Wife pursuant to Order 35.4.1 does not extinguish the amount owing to the Respondent Wife pursuant to Orders 32 and 33 the obligations of those Orders will continue until payment is made in full.
37.That pending the payments to the Respondent Wife in accordance with Orders 32 and 33, the Applicant Husband is restrained from Transferring the Town G property to any other person without the prior written consent of the Respondent Wife.
38.That pending the payments to the Respondent Wife in accordance with Orders 33 and 34, the Applicant Husband is restrained from drawing down on the Town G mortgage or further encumbering the Town G property unless to meet the payments in accordance with Order 32 and 33, without the consent of the Respondent Wife. The Respondent Wife is to provide her consent or response within 7 days of the request from the Applicant Husband. In the event the Respondent Wife has questions the Applicant Husband is to reply within 7 days and the Respondent Wife is to confirm her position within a further 72 hours. In the event there is no agreement between the parties they are to attend mediation with a Family Law Specialist to address the issue, with the Respondent Wife to nominate 3 mediators and the Applicant Husband to choose 1 within 72 hours of the nomination.
Car
39.That within 4 months of the date of these Orders the Applicant Husband shall do all things and sign all documents necessary to finance a car to be registered in the Respondent Wife’s sole name up to the value of $55,000, with such car to be selected by the Respondent Wife.
40.The Applicant Husband and Respondent Wife are to agree on the terms of the finance prior to the purchase of the vehicle, provided that the terms include that the vehicle is to be paid in full by the end of the finance term, the term being the value of $55,000.
41.That pending the Applicant Husband’s compliance with Order 39 the Respondent Wife shall continue to drive the Motor Vehicle 1 registered in the name of D Pastoral Company Pty Ltd, with registration number …. The Applicant Husband shall be responsible for the servicing and maintenance costs for Motor Vehicle 1. The COURT NOTES the registration and insurance has been paid and expires in 10 months.
42.Upon the Applicant Husband’s compliance with Order 39 and within 24 hours of the Respondent Wife taking delivery of the vehicle the Respondent Wife shall return Motor Vehicle 1 to the Applicant Husband.
Joint Accounts
43.That within 28 days of the date of these Orders the parties shall do all things and sign all documents necessary to close the joint C Bank Accounts and pay any funds remaining to the parties equally.
Life Insurance
44.The Applicant Husband will pay the Respondent’s Wife Life Insurance policy with U Company until X reaches the age of 18, being on … 2029.
Home Contents of F Street, Town G
45.That within 30 days of the date of these Orders the parties are to divide all furniture, furnishings and effects in the Town G property as follows:
45.1. The Applicant Husband will provide the Respondent Wife with access to the property to inspect the furniture and contents, during business hours for 3 hours to enable the Respondent Wife sufficient time to go through the home including the attic. The Respondent Wife shall nominate 3 proposed times and the Applicant Husband is to select 1 within 48 hours of the nomination.
45.2. The Applicant Husband and Respondent Wife will each nominate one independent third party to be present on behalf of each party for the Respondent’s Wife’s inspection, with such person to be agreed in writing between the parties prior to the inspection date;
45.3. Within 3 days of inspection of the property the Respondent Wife will notify the Applicant Husband of all items she wishes to retain, including placing any small items in an area of the home for the Applicant Husband to view;
45.4. In the event the Applicant Husband objects to any items contained within the list provided by the Respondent Wife the Applicant Husband will notify the Respondent Wife of any objections within 3 days of receipt of the list from the Respondent Wife. The Applicant Husband shall not unreasonably withhold his consent to the Respondent Wife retaining items of the list presented to him in accordance with Order 45.3.
45.5. In the event there is no agreement on the items to be retained by the Respondent Wife the parties will divide the contents of the Town G property by way of the two-list method, as follows:
45.5.1.That upon settlement of the sale of the Town G property the parties shall each retain 50% of the furnishings, furniture and effects as follows:
45.5.1.1.Within 28 days of the date of these Orders the Applicant Husband shall prepare two (2) lists of the furniture, furnishings and effects in the Town G property, with the furniture, furnishings and effects contained on each list to be to approximate in value to that contained in the other list and provide the lists to the Respondent Wife.
45.5.1.2.The Respondent Wife shall select one of the lists within 7 days of receipt of the lists and in default the Applicant Husband shall select a list for the Respondent Wife and thereafter the Respondent Wife shall be solely entitled to the items in the list she has chosen or the Applicant Husband has chosen for her and the Applicant Husband shall be solely entitled to the items in the other list.
45.6.The Applicant Husband will provide the Respondent Wife with access to collect the items she nominates to retain within 7 days of agreement pursuant to Order 45.4 or 45.5.
Companies and Trusts
46.That within 28 days of the date of these Orders:
46.1.The Respondent Wife will do all things and sign all documents necessary to resign as the Director of D Pastoral Pty Ltd and D Holdings Pty
46.2.The parties shall do all things and sign all documents necessary to remove the Respondent Wife as a beneficiary of the Ackerley Family Trust.
47.The Respondent Wife hereby acknowledges that she has received all entitlements due and owing to her as a result of the respondent having been an employee, director, officer, beneficiary and/or shareholder of E Pty Ltd, D Holdings Pty Ltd, D Pastoral Company Pty Ltd, The Ackerley Self-Managed Superannuation Fund and the Ackerley Family Trust.
48.The Applicant Husband shall indemnify and keep indemnified the Respondent Wife against any claim or liability of any nature, including but not limited to Capital Gains tax arising from the sale of the farm, any loan account, director’s loans, shareholder’s loans and taxation liabilities, which the Respondent Wife has at any time arising in any way in respect of E Pty Ltd, D Holdings Pty Ltd, D Pastoral Company Pty Ltd, The Ackerley Self-Managed Superannuation Fund and the Ackerley Family Trust whether (but not limited to):
48.1.By reason of the respondent having been an employee, director, officer, beneficiary, and/or shareholder of E Pty Ltd, D Holdings Pty Ltd, D Pastoral Company Pty Ltd, The Ackerley Self- Managed Superannuation Fund and the Ackerley Family Trust;
48.2.Pursuant to any guarantee given by the Respondent Wife in respect of any liability of E Pty Ltd, D Holdings Pty Ltd, D Pastoral Company Pty Ltd, The Ackerley Self-Managed Superannuation Fund and the Ackerley Family Trust;
48.3.In respect of the receipt by the Respondent Wife of any money from E Pty Ltd, D Holdings Pty Ltd, D Pastoral Company Pty Ltd, The Ackerley Self-Managed Superannuation Fund and the Ackerley Family Trust;
48.4.In respect of any loan account of the Respondent Wife with E Pty Ltd, D Holdings Pty Ltd, D Pastoral Company Pty Ltd, The Ackerley Self-Managed Superannuation Fund and the Ackerley Family Trust;
48.5.In respect of any liability of E Pty Ltd, D Holdings Pty Ltd, D Pastoral Company Pty Ltd, The Ackerley Self-Managed Superannuation Fund and the Ackerley Family Trust.
Ackerley Self-Managed Superannuation Fund
49.That upon the Applicant Husband’s compliance with Order 33, the parties shall do all things and sign all documents as follows:
49.1.The Respondent Wife will tender her resignation as director of the trustee company of the Ackerley Self-Managed Superannuation Fund;
49.2.The Respondent Wife will transfer to the Applicant Husband her shares in the trustee company of the Ackerley Self-Managed Superannuation Fund;
49.3.The Respondent Wife will resign as a member of the Ackerley Self-Managed Superannuation Fund.
50.Orders 50 to 53 of these orders are binding on the trustees of the Ackerley Self- Managed Superannuation fund (the fund).
51.That, in accordance with paragraph 90XT(1)(b) of the Family Law Act 1975:
51.1.The Applicant Husband is entitled to be paid the specified percentage out of the Respondent Wife’s interest in the fund;
51.2.The Respondent Wife’s entitlement in the fund is correspondingly reduced by force of this order; and
51.3.The percentage specified for the purposes of this order is 100%.
52.That the trustee of the fund do all such acts and things and sign all such documents as may be necessary to:
52.1.Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the husband in the immediately preceding clause of this orders; and
52.2.Pay the entitlement whenever the trustee makes a splittable payment from the Respondent Wife’s interest in the fund.
53.That this order has effect from the operative time and the operative time is 28 days after which this order is made.
Other Orders
54.That except as specifically provided for by any order comprising these Orders to the contrary, the Applicant Husband is solely entitled at law and in equity, to the exclusion of the respondent, to all other items of property and/or assets or financial resources in his possession or control, including but not limited to:
54.1.the Town G property;
54.2.the applicant’s interest in E Pty Ltd;
54.3.the applicant’s interest in D Holdings Pty Ltd;
54.4.the applicant’s interest in D Pastoral Company Pty Ltd;
54.5.the applicant’s interest in the Ackerley Family Trust;
54.6.the applicant’s bank accounts;
54.7.the applicant’s superannuation;
54.8.the applicant’s furniture, furnishings and personal effects.
55.That except as specifically provided for by any order comprising these Orders to the contrary, the Respondent Wife is solely entitled at law and in equity, to the exclusion of the applicant, to all other items of property and/or assets or financial resources in her possession or control, including but not limited to:
55.1.the respondent’s bank accounts;
55.2.the respondent’s superannuation;
55.3.the respondent’s furniture, furnishings and personal effects.
56.Except as specifically provided for by any Order in these Orders to the contrary, each of the applicant and the respondent release the other from all debts owing from one to the other.
57.From the date of these Orders, the Applicant Husband shall do all acts and things necessary to indemnify, and keep indemnified, the Respondent Wife from and against all liabilities of the Applicant Husband including, but not limited to:
57.1.The applicant’s credit cards;
57.2.The applicant’s ATO debt;
57.3.The invoices to B & Associates;
57.4.all liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the applicant’s interest in any business or real property;
57.5.taxation (including CGT); and
57.6. duties (including stamp duty), whether past, present or future.
58.From the date of these Orders, the Respondent Wife shall do all acts and things necessary to indemnify, and keep indemnified, the Applicant Husband from and against all liabilities of the Respondent Wife including, but not limited to:
58.1.The respondent’s credit card;
58.2.The respondent’s personal loan;
58.3.all liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the respondent's interest in any business or real property;
58.4.taxation; and
58.5. duties (including stamp duty), whether past, present or future.
59.In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Family Court of Australia is appointed pursuant to Section 106A of the Act, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument. The defaulting party to pay the costs of the application.
60.Each party pay their own costs.
Dated: 17 / June / 2020
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