ALDRIDGE & MAZZOTTI
[2009] FamCA 1048
•5 November 2009
FAMILY COURT OF AUSTRALIA
| ALDRIDGE & MAZZOTTI | [2009] FamCA 1048 |
| FAMILY LAW – PROPERTY – Cross-vested jurisdiction from the Australian Capital Territory (ACT) – domestic relationship property – jurisdiction to deal with property situated in New South Wales (NSW) – whether superannuation can be treated as property or a financial resource under the Domestic Relationships Act 1994 (ACT) |
| Child Support (Assessment) Act 1989 (Cth) s 117(1) Domestic Relationships Act 1994 (ACT) ss 11(1), 12(1), 12(2), 15(1), 19(2) Family Law Act 1975 (Cth) ss 4, 75(2), 79(1), 79(1B), 90MC(1), 90MT(1), 96AA Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 5(1), 13 Jurisdiction of Courts (Cross‑Vesting) Act 1993 (ACT) ss 5(1), 13 Property (Relationships) Act 1984 (NSW) |
| Champion v Smith [2007] ACTSC 44 Ferris v Winslade (1998) 22 FamLR 725 Gyselman & Gyselman (1992) FLC 92-279 NHC & RCH [2004] FamCA 633 Pastern & Pastern [2007] FamCA 620 Prymas v Whittaker [2006] ACTSC 48 Steinbrenner & Steinbrenner [2008] FamCAFC 193 |
| APPLICANT: | Ms Aldridge |
| RESPONDENT: | Mr Mazzotti |
| FILE NUMBER: | CAF 262 of 2005 |
| DATE DELIVERED: | 5 November 2009 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 27-28 November 2006; 31 July 2007; |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Tonkin |
| SOLICITOR FOR THE APPLICANT: | Elrington Boardman Allport |
| COUNSEL FOR THE RESPONDENT: | Mr Nash |
| SOLICITOR FOR THE RESPONDENT: | Dobinson Davey Clifford Simpson |
Orders
That the respondent, Mr Mazzotti, will pay the sum of $95, 500 to the applicant, Ms Aldridge, within ninety (90) days of the date of delivery of this judgment.
That the applicant’s application for a departure order for child assessment under the Child Support (Assessment) Act 1989 (Cth) is dismissed.
That the applicant’s application for a lump sum departure order for child support under the Child Support (Assessment) Act 1989 (Cth) is dismissed.
That the proceedings for the property matters are removed from the active cases list.
That all material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
That any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
IT IS NOTED that publication of this judgment under the pseudonym Aldridge & Mazzotti is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAF262 of 2005
| MS ALDRIDGE |
Applicant
And
| MR MAZZOTTI |
Respondent
REASONS FOR JUDGMENT
Foreword
This case concerned both property and children’s proceedings between the applicant, Ms Aldridge, and the respondent, Mr Mazzotti.[1] The children’s proceedings have since been re-opened and will next be heard by me in November 2009.
[1] I have referred sometimes in my Judgement to the parties as “applicant” and “respondent”; sometimes as “husband” and “wife” and sometimes in the original Judgment by their names. The parties, of course, were never married and the references to them as “husband” and “wife” are only for convenience and do not imply marriage. If in using this nomenclature I have inadvertently caused offence, I apologise.
The applicant is presently 52 years of age and was not in paid employment at the time of the hearing. She receives a Centrelink pension, rental support and child support from the respondent. The respondent is presently 63 years of age and gave evidence that he worked 9 hours a week in his business, C Business Pty Ltd. The parties have a daughter, E, who was born in October 2003.
The applicant was born in New Zealand and emigrated to Australia in 1986. She has two children from a previous relationship, being sons, who are adults. The respondent was born in Italy and moved to Australia where he started a family of six children who are currently aged between their late twenties and forties.
Domestic Relationships Act 1994 (ACT)
The property proceedings under the Domestic Relationships Act 1994 (ACT) were transferred to the Court under the relevant provisions of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth)[2] and the Jurisdiction of Courts (Cross‑Vesting) Act 1993 (ACT).[3]
[2] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(1).
[3] Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) s 5(1).
The criteria attracting the operation of the Domestic Relationships Act1994 (ACT) are residence, whereby both parties have to be resident in the Australian Capital Territory (ACT) on the day in which the application is made,[4] and have resided in the ACT for at least a third of their relationship,[5] or that the relationship is not shorter than two years in duration.[6]
[4] Domestic Relationships Act 1994 (ACT) s 11(1)(a).
[5] Domestic Relationships Act 1994 (ACT) s 11(1)(b).
[6] Domestic Relationships Act 1994 (ACT) s 12(1).
Although the respondent initially asserted that there was no domestic relationship because he alleged that he had paid the applicant for housekeeping, this court could validly have jurisdiction as a result of s 12(2) of the Domestic Relationships Act1994 (ACT) whereby if the Court is not satisfied that a domestic relationship exists, it can still make orders under that Act if it is satisfied that there is a a child of the parties to the relationship.[7] There is no dispute in this case that E was the child of the parties.
[7] Domestic Relationships Act 1994 (ACT) s 12(2)(a).
Orders Sought By The Parties
The orders sought by the applicant are set out at Endnote 1.Endnote 1 In effect, the applicant sought 40 per cent of the property, payment of lump sum child support and that the respondent continues to see the child by way of one hour supervised time each fortnight. The orders sought by the respondent are set out at Endnote 2.Endnote 2 In effect, the respondent sought that he pay the applicant the sum of $53,000 in settlement of the property proceedings, and a regime of the child spending time with him, increasing over a twelve month period until it occurred each alternate weekend and one night a week.
After the hearing and before judgment, the court was notified by way of letter dated 19 December 2008 from the husband’s solicitors that he did not continue to seek orders which would enable him to spend time with the child. He sought other restraints about the movement of the applicant and child and further that he continue to receive certain information about his daughter. Notwithstanding a number of attempts to determine whether the applicant consented to the suggested restraints, it was not until 29 October 2009 when the applicant communicated to the Court that she confirmed her acceptance of the arrangements about the time (or lack of it) the child would spend with her father but did not consent to the other orders sought by the respondent otherwise. The remaining issues for determination about the child have now been listed before me in November 2009. Because there is no issue between the parties which would appear to affect my decision about the property division, I determined to deliver my judgment about that part of the parties’ dispute now.
There has been more than enough delay in these proceedings. In this regard, I offer my unqualified apology to the parties for the delay in the delivery of judgment. The episodic nature of the hearing and the subsequent submissions provides some explanation for the delay, but certainly no excuse.
Brief Background
It was not disputed that the parties commenced a relationship in March 1999 having met through a dating service. At the commencement of the relationship it is not disputed that the applicant lived in a house in W in the ACT, which was rented from ACT Housing, where her children, now adult sons, lived. It is also not disputed that the husband brought to the relationship his business and properties, being a farm in New South Wales (NSW) and his residential property in N, ACT. It is conceded that throughout the time that the parties spent together, they would spend (depending on whose evidence might be accepted) some (or more) nights at each others’ houses.
The parties separated in May 2000 and the applicant sought and was granted an interim Restraining Order against the respondent. Later that month, the respondent sued the applicant in the ACT Small Claims Court for $600, and for return of clothing and personal items. However, in August 2000 the parties had reconciled and the applications were withdrawn.[8] In either September or October 2000, the respondent proposed and the parties were engaged. In January 2001, the restraining order application was dismissed.
[8] Affidavit of the respondent, 10 October 2006, [21]-[22].
In 2000, the respondent received $67,000 by way of personal injuries compensation for an accident which occurred in 1993.[9] This money was used to renovate the property at N, ACT and in payment of the mortgage. In December 2000, the respondent also received approximately $15,500 from his mother’s estate.[10]
[9] Ibid [63].
[10] Ibid [65].
Until at least 2001, the applicant continued to meet men through a dating service according to records produced by that organisation,[11] and the respondent also continued to meet people.[12]
[11] Exhibit “F5”.
[12] Affidavit of the respondent, 10 October 2006, [16] & [32].
The engagement ended in January 2001 when the respondent was charged with common assault and criminal damage as the result of an incident between the parties.[13] However, the parties again reconciled temporarily. Before Magistrate Burns in the ACT Magistrates Court the respondent was convicted of having assaulted the applicant and fined.[14]
[13] Ibid [29].
[14] Ibid [31].
The parties reconciled again in 2002 and carried on a relationship during which time E was conceived. She was born in October 2003. The parties then finally separated in May or August 2004.
Procedural History
The applicant initiated proceedings in May 2005 seeking orders under the Family Law Act 1975 (Cth) that the child live with her and spend time with the respondent as agreed between the parties, lump sum child support under the Child Support (Assessment) Act 1989 (Cth), and a property adjustment under the Domestic Relationships Act 1994 (ACT).
In July 2005, the respondent filed an application in a case stating that he objected to the cross-vesting of jurisdiction by the Family Court of proceedings under the Domestic Relationships Act1994 (ACT) and sought an order that the property proceedings be transferred to the ACT Supreme Court.
On 29 August 2005, the matter came on for determination and I refused to transfer the property proceedings to the ACT Supreme Court. This resulted in the respondent filing a Notice of Appeal on 23 September 2005 in relation to the refusal to transfer. Orders were also made by consent which provided as follows:
1.That pursuant to the Family Law Act 1975 the child of the parties, being [E] born [in] October 2003 shall reside with the applicant mother.
2.That the respondent father if he so wishes to have contact with the child, shall have contact with the child only at agreed times as follows until the child attains the age of 5 years: -
a.Either at the applicant’s residence or at another agreed location;
b.Supervised by the applicant mother on all occasions;
c.For no more than 1 hour per week.
d.As otherwise agreed.
3.That the respondent father shall have contact with the child only at agreed times as follows when the child is aged between 5 years and 11 years old: -
a.Either at the applicant’s residence or at another agreed location;
b.Supervised by the applicant mother on all occasions;
c.For no more than 3 hours per week.
d.As otherwise agreed
4.That the respondent father shall have contact with the child as agreed from time to time after the child attains the age of 11 years.
5.That the child’s surname shall be changed from “[Mazzotti Aldridge]” to just “[Aldridge]”.
6.That the applicant mother is permitted to travel with the child to anywhere within Australia or overseas, including New Zealand, without having to provide any notice to the respondent father and without requiring his consent.
7.That the applicant mother is permitted to relocate with the child from the ACT Region to any other Australian State or Territory and she is also permitted to relocate with the child to her birth country of New Zealand, without the respondent father’s consent or any notice to him, at any time.
8.That the applicant mother is solely responsible for all decisions concerning the child’s daily and long term care, welfare and development and without limiting the genarility [sic] of this provision, including matters of cultural heritage, religion, education, citizenship and residency.
However, prior to the appeal being heard by the Full Court of the Family Court, the matter was listed for a procedural hearing before her Honour Finn J, including the applicant’s application under s 96AA of the Family Law Act 1975 (Cth) seeking the dismissal of the appeal on the grounds of incompetence, because under s 13 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and s 13 of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) an appeal does not lie from a decision of a Court in relation to a decision whether or not to cross-vest. The respondent filed a Notice of Discontinuance on 22 December 2005, and changed solicitors in early January 2006.
As a result, the applicant sought costs on an indemnity basis from the date of the filing of the appeal. The matter was heard before the Full Court of the Family Court on 10 July 2006, and judgment was delivered on that day. Orders were made on that date that the respondent pay the applicant’s costs of the appeal from 23 September 2005 to 21 February 2006, and that the applicant pay the respondent’s costs in relation to an Amended Application seeking indemnity costs (as opposed to party-party costs) filed on 20 March 2006 in those proceedings.
On 14 March 2006, consent orders were made which amended the orders under which the child was seeing her respondent to provide that supervision be undertaken by M Contact Service, and the costs be paid for by the respondent.
These orders were again amended by consent on 19 April 2006 to provide that the child would spend time with the respondent from 1.00 pm to 2.00 pm and that the applicant would provide the child with a snack and a drink.
The matter came on for hearing over 27 and 28 November 2006, but was adjourned part-heard until 26 and 27 February 2007. This was in part because the respondent failed to comply with the Registrar’s directions for filing and sought to rely upon an Affidavit by Mr Y providing an alternate valuation of the respondent’s company without the joint expert having an opportunity to read the report.
On 8 January 2007, the applicant sought an order that the respondent pay $15,000 into trust as a security for costs application. On that date, the respondent also issued an enforcement warrant against the applicant seeking seizure of household contents in order to satisfy $2,907.99 of the costs order resulting from the Full Court proceedings.
These matters both came before me on 18 January 2007 and I dismissed the applicant’s application and stayed the enforcement warrant until further order of the Court or the completion of the primary proceedings.
After the completion of the hearing, on 27 February 2007, I made interim orders pending judgment. These orders provided that the child would spend three hours per week with her father supervised and that the respondent would pay the costs of supervision. I also directed that the parties attend upon a Parenting for Positive Behaviours course, and that upon completion of that program, the parents participate in the Parenting Orders Program. I further restrained the child from being removed from Australia and placed her name on the Airport Watch List.
On 22 June 2007, the respondent filed an application seeking leave to re-open proceedings in order to adduce further evidence of the valuation of the respondent’s company, C Pty Ltd by a valuer, Mr Y, based on the company’s updated financial figures prepared by the respondent’s accountant, Mr P for the period ending 31 December 2006. This was material that was not available at trial and it is appropriate for it now to become part of the evidence. That application was granted on 31 July 2007 by consent. It was agreed that the net value of the business was $42,019. Both parties were also given liberty to provide additional written submissions.
Written submissions were received from the applicant’s counsel, Ms Tonkin, on 31 July 2007, with written submissions in response filed by the husband’s counsel, Mr Nash on 29 October 2007.
The husband filed an Application – Contravention on 11 September 2007 alleging that the applicant had without reasonable excuse failed or refused to allow him to spend time with the child pursuant to orders made by me previously. The contravention application was heard on 5 October 2007. I ordered compensatory time for the respondent of three hours unsupervised time with the child for a period of three hours each Tuesday and Thursday for a period of three weeks, and thereafter each Wednesday for a period of three hours. On each occasion, the time spent between the respondent and the child would be unsupervised.
The matter was then adjourned before me on 10 December 2007 and, following the report of Ms L, a Family Consultant of this Court, I ordered similar unsupervised time to be spent between the respondent and the child, with the change that handover was to occur at M Contact Centre.
Parenting orders which provided for similar time to be spent between the respondent and the child were made on 27 March 2008.
Further contravention applications were filed by both parties on 26 May 2008, and by the applicant on 17 June 2008. In relation to these applications, the parties appeared before me on 16 June 2008, 24 June 2008 and 4 July 2008. Ultimately, on 4 July 2008, I ordered that the child would spend three hours every Wednesday and five hours every second Sunday with her father.
Following (regrettably) a period of nearly a year between the filing of counsel for the husband’s written submissions, I directed the Registrar to write to the parties to confirm a number of matters in relation to the property which may have changed since the matter was reserved by me for judgment. Registrar Parker wrote to the parties to this effect on 27 October 2008. The parties provided the information that I requested on 21 November 2008 (the applicant) and 19 December 2008 (the husband). Importantly, Mr the husband’s solicitors indicated that:
In light of:
a.The ongoing level of conflict between [the mother] and [the father] concerning the arrangements for the child;
b.The frequent allegations made by [the mother] against [the father] concerning the child;
c.[the father’s] belief a positive change to these matters was unlikely to occur,
[The father] resolved that it was better for the child, [E], if he did not pursue face to face contact with her. These issues made it extremely difficult for [the father] to continue to attempt to spend time with the child. [the father] has despaired that he has had little success in seeking [the mother’s] compliance and real support of the existing orders.
Following (regrettably) a further delay, I asked the Registrar to write to the parties asking whether the matter should be re-listed for further hearing, essentially to ensure that the valuations upon which the judgment would be based were fair to both parties. Registrar Parker wrote to the parties to this effect on 8 April 2009. The parties responded by way of letter on 24 April 2009 (the applicant) and 27 May 2009 (the husband). In a letter dated 24 April 2009, the applicant’s solicitor indicated that the applicant did not wish for her case to be re-opened due to financial constraints. The Court was also advised that the applicant represented herself in relation the children’s matters outstanding. The husband’s solicitor indicated (by way of letter dated 27 May 2009) that the husband sought an opportunity to file an additional Affidavit outlining a change to his financial circumstances.
The parties (through their solicitors) next appeared before me at a directions hearing on 23 June 2009, in which I gave leave for the husband to file by 7 July 2009 an additional Affidavit setting out his changed financial situation since the finalisation of the previous hearing. I also gave leave for the applicant to file an Affidavit in response by 21 July 2009.
After the expiration of the above dates, I ordered in Chambers that the parties file written submissions by 12 August 2009 (the applicant) and 26 August 2009 (the husband) respectively. Submissions were received by the husband on 13 August 2009 and the applicant on 26 August 2009 respectively.
On 3 September 2009, I prepared draft orders (set out at Endnote 3Endnote[i]) in Chambers which, in my opinion, reflected what the parties might reasonably consent to vis-à-vis the child’s future. I directed my Legal Associate to send a copy of those draft orders to the parties and to ascertain whether they would consent in writing to those orders. On 29 October 2009, the applicant telephoned the Court and advised that she did not consent to the proposed orders which imposed a restraint on her from changing the address of the child from the ACT or Queanbeyan area without the written consent of the husband or an order of the Court, and the requirement that she advise the husband of the child’s residential address, the school she attends and any medical issues about her (including keeping the husband apprised within 24 hours of any event which causes the child to be hospitalised).
On 29 October 2009, I ordered in Chambers that the matter be set down for finalisation of the children’s issues in dispute on 18 November 2009. I noted in my orders of that day that the finalisation of the children’s issues would not impede or delay the delivery of my judgment in relation to the property matters and that I would deliver judgment prior to the listing on 18 November 2009.
Adjustment of Property Interests
Under the Domestic Relationships Act 1994 (ACT), the legislative considerations are different from those applicable under s 75 and s 79(2) of the Family Law Act 1975 (Cth). The main differences between the two Acts is the Family Court’s more expansive powers under the Family Law Act 1975 (Cth) to deal with the interests in property of Trustees in bankruptcy where a party to the marriage has become bankrupt,[15] to adjourn proceedings in certain circumstances,[16] and to make splitting orders in relation to superannuation interests.[17] There are also a number of other factors which may be taken into account by the Court under s 75(2) of the Family Law Act 1975 (Cth) (which are not relevant factors under s 19(2) of the Domestic Relationships Act 1994 (ACT)) including whether the parties have a standard of living that is reasonable,[18] the need to protect a party who wishes to continue that party's role as a parent,[19] and if either party is cohabiting with another person – the financial circumstances relating to the cohabitation.[20] .
[15] Family Law Act 1975 (Cth) s 79(1)(b).
[16] Family Law Act 1975 (Cth) s 79(1B).
[17] Family Law Act 1975 (Cth) s 90MT(1).
[18] Family Law Act 1975 (Cth) s 75(2)(g).
[19] Family Law Act 1975 (Cth) s 75(2)(l).
[20] Family Law Act 1975 (Cth) s 75(2)(m).
In the ACT Supreme Court case of Ferris v Winslade,[21] his Honour Cooper J outlined the process for adjusting property interests under the Domestic Relationships Act 1994 (ACT). In that case, his Honour stated:[22]
[21] Ferris v Winslade (1998) 22 FamLR 725 (Cooper J).
[22] Ibid 728-729.
[14]The object of the Act, as far as is practicable, is to end the financial relationship between the parties … and to avoid further proceedings between them: s14.
[15]Once the jurisdictional facts are established, the court is empowered upon the application of a party … to adjust the interests in the property of either or both the parties in such manner as to the court seems just and equitable: s 15(1).
[16]The power to make or refuse to make an order is discretionary. The matters relevant to the exercise of the discretion are set out in ss 15(1)(a) to 15(1)(e) in the following terms:
a.the nature and duration of the relationship;
b.the financial or non-financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any property or financial resources of either or both of them;
c.the contributions (including any in the capacity of home‑maker or parent) made by either of the parties to the welfare of the other or any child of the parties;
d.the matters referred to in subsection 19(2), so far as they are relevant; and
e.such other matters, if any, as the court considers relevant.
[17]The matters referred to in s 19(2) of the Act which are relevant under s 15(1)(d) are:
a.the income, property and financial resources of each party;
b.the physical and mental capacity of each party for appropriate gainful employment;
c.the financial needs and obligations of each party;
d.the responsibilities of either party to support any other person;
…
f.any payments made to the applicant, pursuant to an order of a court or otherwise, in respect of the maintenance of a child or children.
[18]Nothing in the Act affects any right of a party to a domestic relationship to any remedy or relief under any other Act or law: s 5. Further, the court may make an order under s 15(1) of the Act whether or not it has declared the title or rights of a party in respect of the property the subject of the application: s 15(2). “Property” for the purpose of the Act is defined, in relation to the parties to the domestic relationship, as the real or personal property to which either is, or both are, entitled: s 3(1).
However, after examining the discussion paper presented by the then ACT Attorney‑General, Mr Connolly, and the reading speeches which accompanied the Bill, and the method adopted by the Courts in NSW (see paragraphs [19]‑[27]), Cooper J went on to state:
[28]The ACT legislature has not sought to equate a de facto marriage to a legal marriage. Nor has it, in relation to adjustment of property rights between parties to a domestic relationship, replicated, exactly, the Family Law Act for the adjustment of property rights. However, the similarities in the nature of the discretion to be exercised in making orders adjusting property rights, in my view mean that recourse can and should be had to decisions of the Family Court of Australia …under s 79 of the Family Law Act as to the appropriate principles which guide the exercise of the discretion under s 15 of the Act... [my emphasis]
Notwithstanding that there are some differences in the two Acts, I propose to examine first the pool of property of the parties or either of them and to make decisions about their liabilities where appropriate. I shall then consider the contributions each has made in various ways and finally consider their respective financial and personal situations in accordance with s 19(2) of the Domestic Relationships Act 1994 (ACT) to the extent they are relevant to my determination.
Property Pool
The items which comprised the property pool were the subject of much evidence and contention. It was agreed that the respondent owned properties at F, ACT, a farm in NSW, and a company C Pty Ltd, in which the respondent is the director and owns the sole share, which runs a business, C Business.
I have no power to deal with the NSW farm property primarily as it cannot come within the purview of jurisdiction of the Domestic Relationships Act 1994 (ACT). Nevertheless, it is appropriate to include “external” property notionally in the pool because it would be artificial and contrived not to do so. I, however, must remain vigilant in my consideration of the issues within the matter to ensure that any orders I may make will be capable of operation without affecting directly the property outside the relevant jurisdiction.
I note that a slightly different approach was undertaken by Connolly J in Champion v Smith,[23] a case involving both NSW and ACT properties, where his Honour applied (under cross-vested jurisdiction) the provisions of the Property (Relationships) Act 1984 (NSW) to achieve, in my opinion, substantially the same result.
[23] Champion v Smith [2007] ACTSC 44 (Connolly J).
No one urged on me in these proceedings, notwithstanding many opportunities to do so, that I should not include the NSW property in my considerations of the total property pool. Indeed, in my orders of 31 July 2007, I noted that it was agreed by the parties in the schedule handed up to the Court by Mr Nash that it did constitute part of the assets which should be taken into account.
The evidence supports a finding that the respondent in many respects treated the company accounts as if they were his own personal accounts. It seems, however, that those responsible for keeping his books and those of the company recorded so far as they were able to do so, “personal transactions” as falling under a loan account for the respondent. That account or more correctly two accounts[24] were part of the assets of the company. However, to the extent they were assets of the company, they were also liabilities of the respondent and in the context of the respondent’s treatment of the company, essentially cancelled each other out.
[24] The money used to purchase the farm was recorded as “the farm loan” but was in reality a loan to
the respondent.
Although valuation evidence was given in relation to the property at N, by the time the matter came to judgment there was agreement between the parties that it should be valued at $310,000. This valuation is very likely to be conservative, but I accept that each of the parties have reached the point where neither wished to seek any alternative valuation. Similarly, the property in NSW which had been the subject of an earlier evaluation of $130,000 was accepted to be so valued for the purposes of judgment by both the parties.
C Pty Ltd
Mr L was appointed as single expert witness to value the respondent’s company. In his report filed 10 August 2006, Mr L valued the business at $205,000.
However, at the hearing the respondent sought to rely upon the Affidavit of Mr Y, filed on 16 October 2006. Mr Y, who had seen the earlier valuation of Mr L, sought to disagree with his method of valuation and valued the business at between $59,623 and $89,435. The respondent’s insistence on relying on the Affidavit led in part to the adjournment for a three month period.
Upon the resumption of the hearing in February 2007, the Court was informed that the applicant had engaged a further expert, Mr Z, who filed his Affidavit on 21 February 2007. Mr Z concurred with Mr L’s revised valuation of the business at $195,000.
However, on 26 February 2007, I was presented with a conference document provided by Mr L and Mr Y, which became Exhibit “J2”, in which both experts valued the business at $24,907.
In order to clarify the evidence given by the three experts, Mr Z, Mr Y and Mr L gave evidence in the witness box both individually and concurrently. Despite this, however, the admission against interest by the husband in his application of 22 June 2007 in valuing the business at $42,019 is accepted as being the appropriate valuation.
As discussed above, in December 2008, through the Registrar I caused a letter to be sent to the lawyers for the parties seeking their answers to certain questions, in particular whether they wished to re-open the proceedings to give further evidence primarily about valuation and other matters. As a consequence of this letter I received further information from the parties. The respondent filed a further Affidavit but the applicant did not seek to call any further evidence.
The valuation accepted by the parties in relation to the business arises from the valuation of Mr Y dated 13 April 2007. This valuation appears as an annexure to the affidavit of Mr Y, sworn 4 June 2007. He concludes from that valuation that the net business assets were $42,019. For the purposes of the further consideration of this matter I set out the table of business assets and liabilities relied upon by Mr Y.
Business Assets $ Cash at bank 21,802 Debtors 4,798 Written down value of plant and equipment 28,059 Bond 5,500 Borrowing costs 1,085 Goodwill 73,341 134,585 Business Liabilities Trade Creditors 38,209 Accruals 10,137 Westpac Credit Card 9,697 Provision for Income Tax 18,809 GST 449 Loan – GE Commercial 15,265 92,566 Net Business Assets 42,019 Related Party Loans Other loans – R Mazzotti 52,929 NSW Farm 201,951 Loan – Related companies 11,215 Total Related Party Loans 266,095 Total Net Assets 308,114
I have already commented in part about the loans owed by the husband as they appear in the table provided by Mr Y (for example, the loan for the NSW farm, although in reality this is money owed by the husband to the husband). It can be seen from the table set out above, however, that the “Related Party Loans” were not part of the calculation of the value of the company at $42,019. The bank account of the company was recorded for the purposes of the figure which became agreed as $21,802. This figure has changed in more recent evidence, but also so it can reasonably be inferred are debtors, trade creditors and so forth.
In his further Affidavit filed in these proceedings on 7 July 2009, the husband sought to update various debts which were owed by him and by the company. He also gave evidence about the application of some funds to his son.[25]
[25] Affidavit of the husband, 7 July 2009, [10].
A question which arose in my mind was whether there should be some adjustment made to the agreed figure in relation to the business bearing in mind the time that had elapsed and the controversy associated with its original acceptance by the parties.
At the conclusion of addresses by counsel for each of the parties on 27 February 2007, the parties were not agreed about the value of the business. The effect of the evidence of the three experts had been that the net value of the business was approximately $25,000. Mr Z had conducted an exercise on behalf of the applicant to examine the cash flow that could or should have emerged from the business since 30 June 2005. It was agreed that the value of the assets of the business at that point was $25,000.
Ms Tonkin, on behalf of the applicant, urged on me that I should accept the cash figure and that I should make what she would have described as “robust” findings because of the failure on the part of the husband to make what she asserted was a proper disclosure about income, in particular during the period since 30 June 2005. All the valuers agreed that the business was worth not less than $25,000 because of the findings of Mr Z.
The difficulty was (as I explained in the course of submissions[26]) that while it was clear that the figure that the valuers had agreed upon as at 30 June 2005 was not the correct figure, there was no other figure which could be confidently asserted as being correct. Mr Z’s investigations had related to income and did not deal with liabilities. Ms Tonkin[27] urged on me that I could deduce certain things about the assets of the business and the bank accounts from the information I had but I had no evidence before me about liabilities of the company at the relevant time.
[26] Transcript, 27 February 2007, 347ff.
[27] Ibid.
To some extent these matters became irrelevant because on 31 July 2007, as is noted in an order made by me on that day, the business was agreed to have a net value of $42,019 and I was given written submissions from the applicant’s lawyers and it appeared that there may be further submissions from Mr Nash on behalf of the husband.
In the most recent material filed by the husband, it appears that the business overdraft, which did not appear in the preceding accounts, was $18,842.81 as at 11 June 2009. There was a further business account which had previously been brought into account by Mr Y, as appears above, at $21,802 which was now $44,033.04 but the husband asserted that there was, at that time, $25,000 in wages outstanding which he further asserted was the normal amount that he would pay for wages. The credit in the bank account was as at 18 June 2009. If I were to allow credit for the outstanding claim for wages that would have left a net amount in the bank account (positive) of $19,033.04 which, for all practical purposes, fairly neatly offsets the business overdraft. I note in this regard that I have little evidence about any other liabilities and the offset that I have suggested above is a rough but probably nevertheless appropriate cross‑check as to the currency of the valuation to which the parties have agreed.
It should be noted, however, as will appear from consideration of the other accounts of the husband, that the net state of accounts has included the payment into the accounts from the husband’s Equity Access Loan Plan 2[28] the sum of $40,000 for the payment of tax. I am satisfied the tax was paid. I note that Mr Y took account in his calculation referred to above of a provision for income tax of $18,809 as at that time. In my opinion, it is appropriate that the money should have been paid for tax and the borrowing of it by the husband does not constitute waste or an unreasonable entering into a liability.
[28] Account number …9
At about the same time as the husband withdrew the $40,000 from the Equity Access Loan Account he withdrew, on 17 June 2009, $49,981.30 which he says he provided to his son “to assist [his] son”.[29] Whether that constitutes a loan or a gift was not explained. It was argued on behalf of the applicant[30] that this should be added back into the asset pool. There is no doubt that this constitutes a diminution of the funds that would otherwise have been available to the parties and, in accordance with the principles in NHC & RCH,[31] such an add‑back is appropriate.
[29] Above n 23.
[30] Submissions of the applicant, 26 August 2009, [4.10].
[31] See NHC & RCH [2004] FamCA 633 (Finn, Kay & May JJ).
The debit balance of the bank account referred to above, as at 19 June 2009, was $94,292.84 in lieu of the $83,500 on the respondent husband’s list of assets and liabilities as at 31 July 2007 (which I include below).
RESPONDENT FATHER’S LIST OF ASSETS & LIABILITIES
31 JULY 2007
Assets
| No | Item | Ownership | Father’s Value |
| 1 | N property, ACT | Father | $310,000 |
| 2 | Farm property, NSW | Father | $130,000 |
| 3 | C Pty Ltd | Father | $42,019 |
| 4 | Service One Credit Union Account | Mother | $0 |
| SUB-TOTAL | $482,019 |
Liabilities
| No | Item | Ownership | Father’s Value |
| 6 | Westpac Equity Access Loan Account No. …9 | Father | $83,500 |
| 7 | Westpac Premium Option Home Loan Account No. … | Father | $11,540 |
| SUB-TOTAL | $95,040 | ||
| NET-ASSETS | $386,979 |
Superannuation
| No | Item | Ownership | Father’s Value |
| 8 | Westpac Superannuation | Father | $75,000 |
The husband’s Premium Option Home Loan[32] had a balance, as at 28 August 2008, of $92,274.24. This amount was primarily generated as a result of a withdrawal on 20 June 2008 of $90,000 which was put into the husband’s superannuation fund. He makes reference in his Affidavit to this transaction.[33] Sadly for him (and probably for both the parties) the superannuation turned out not to be the investment that he had hoped it would be – or presumably that his advisers thought it would be. From an opening investment value on 30 June 2007 of $102,855.96 and after insertion of the $90,000, referred to above, as at 30 June 2008 the superannuation fund had managed to diminish to $159,930.91, and by 31 December 2008 to $117,270.40.[34] I am satisfied that the diminution in the value of the investments in the superannuation fund was attributable to factors significantly apart from the husband’s intervention.
[32] Account number 58-9186.
[33] Affidavit of the husband, 7 July 2009, [20].
[34] Affidavit of the husband, 7 July 2009, Annexure “L 40”.
As it transpired the respondent’s borrowing of the $90,000 did not prove to be a particularly profitable investment and the increase in value from the figure contained in the list of assets and liabilities on 31 July 2007 of $75,000 to $117,000 is a reflection of what happened to many investment funds throughout Australia.
In my opinion, notwithstanding the submissions of the applicant,[35] the borrowing and hence the liability, in the hands of the respondent should remain. If there had been a spectacular increase in the value of his superannuation there is no doubt that would have attracted an enthusiastic acceptance of the investment. As a consequence, both the increased value of the superannuation, so far as it is known to me, from the evidence before me and the amount of the debt, also so far as it is known to me, should be taken into account. I note that in [22] of the respondent’s affidavit he provides (one might imagine as an admission against interests) that he had been by hearsay informed that the balance of his account at that point was $118,003.61.
[35] Submissions of the applicant, 26 August 2009, [4.14].
It was agreed that the superannuation as it was to be regarded as under the Domestic Relationships Act 1994 (ACT) should be treated as a resource rather than as an asset. I am not convinced that this must be so given the husband has now probably either retired or attained an age when he could have access to all of the funds, but as that was the agreement upon which the litigation proceeded (although there was some submissions made by Ms Tonkin to the contrary) it matters little whether it was $117,000 or whether it was $118,000 at the time of the Affidavit or for that matter whether it is a little more at the present point. In the overall scheme of the assets of the parties, it is a fairly significant resource representing 33 per cent of the value of the net pool, (excluding the superannuation itself) subject to my consideration of matters relating to the applicant’s Credit Union account.
Service One Credit Union Account
The respondent subpoenaed the applicant’s bank accounts from the Service One Credit Union. These accounts disclosed a balance in the applicant’s bank account during the period from April 2005 until late May 2005 of $12,000 which the applicant denied she ever had.[36] As a result, the applicant in the adjourned period of the trial, subpoenaed Dr X, the Senior Manager of Risk and Compliance at Service One Credit Union to give evidence. During his evidence, Dr X provided another set of copies of the applicant’s bank statements, which did not reveal the presence of $12,000.[37]
[36] See Exhibits “F2” and “F3”.
[37] Exhibit “M11”.
This is not a case in which the credit of either party stands out like a beacon drawing me inexorably to believing the evidence given by that person. However, on balance having considered the evidence of Dr X I think it is more likely than not, and I find, on the balance of probabilities, that his evidence is correct. This supports the applicant’s evidence that she did not have the $12,000 that appeared on the bank statements. The applicant’s denial of the account is peculiar and the inaccuracy of the Credit Union’s records even more so. Nevertheless I am satisfied that Dr X gave his evidence honestly and I accept that the error occurred.
Assets
Accordingly, in light of the reasons I have given above, I find that the items of property in the total pool are as follows:
N property, ACT $310,000 Farm property, NSW $130,000 C Pty Ltd $42,019 Father’s household contents $5,000 Mother's household contents $3,000 Add‑back for money to father’s son $49,981 TOTAL $540,000
Liabilities
The liabilities are as follows:
Westpac Equity Access Loan $94,292[38] Westpac Premium Option Home Loan $92,274[39] TOTAL $186,566 [38] As at 19 June 2009.
[39] As at 28 August 2008.
I accept there is some mixing and matching of dates and amounts, but in the end I am constrained by the evidence that has been presented to the Court.
This leaves a net asset pool of $353,434.
Superannuation
In addition to the comments I have made above in my Reasons, there is one aspect of the evidence which requires further consideration in relation to the husband’s superannuation.
The applicant asserted that the respondent had already retired, and was working nine hours per week not because of his health, (which he asserted was poor) but because this was the maximum amount that he could work if he had retired. In support of this argument, the applicant presented a copy of a Westpac Personal Superannuation Fund application made by the husband in which he withdrew the amount of $26,000 from the fund and where he had to specify his reason for withdrawal, ticked the box which stated: [40]
I retired between age 55 and 59 (inclusive)
This means you have ceased employment and have no intention of becoming gainfully employed in the future for 10 hours or more per week.
[40] Exhibit “M12”.
As I have stated above, the parties in the end appeared to accept that the superannuation should be treated as a financial resource. The statement which the husband referred to as being false or unexplained on the statement to the bank referred to in the last paragraph I suspect is probably referable to the husband’s somewhat casual approach to making any statements about his assets or liabilities. I could not find on the evidence that his statement to the bank was true or false, but in the context of treating the superannuation as a financial resource rather than as property whether or not he told the truth about the matter or whether or not he had retired is to some extent irrelevant on the question of superannuation, except of course as to its effect under s 19(2)(a) of the Domestic Relationships Act 1994 (Cth).
It might reasonably be argued that if the husband has not retired he will shortly be ineligible in any event (at age 65) to have access to the fund and that, therefore, it should be treated as if it were property.
I note that there is limited authority on the way in which superannuation should be treated under the Domestic Relationships Act 1994 (ACT). In the ACT Supreme Court case of Prymas v Whittaker,[41] his Honour Gray J identified that superannuation is not property for the purposes of the Domestic Relationships Act 1994 (ACT), but that it could be taken into account as a financial resource of a particular party. After assessing the relevant provisions of the Family Law Act 1975 (Cth) which identify that a superannuation interest can be treated as property[42] (for the purposes of the definition of a “matrimonial cause” in s 4 of that Act), his Honour stated:[43]
There is nothing in the [Domestic Relationships Act 1994 (ACT)] to equate with this approach. It is said that it is within my discretion to adopt an approach in this case to treat superannuation as property and that it would be just and equitable to do so. I do not consider that I should do so. The [Family Law Act 1975 (Cth)] does not deem superannuation interests to be property, rather it merely defines such interests as falling within the jurisdiction of that Act. I am not prepared to treat superannuation as property for the purposes of the [Domestic Relationships Act 1994 (ACT)]. The nature of the contingency and the circumstances upon which it becomes due, as well as the question of its valuation, make it particularly difficult to treat it as property in the context of the [Domestic Relationships Act 1994 (ACT)] dealing as it does with alternations and adjustments to such interests. However, at least insofar as I can regard it as a financial resource of the particular party, I am prepared to take their position on superannuation into account as a relevant matter when making property orders pursuant to the [Domestic Relationships Act 1994 (ACT)] as part of the exercise of my general discretionary power.
[41] Prymas v Whittaker [2006] ACTSC 48.
[42] Family Law Act 1975 (Cth) s 90MC(1).
[43] Prymas v Whittaker [2006] ACTSC 48, [37] (Gray J).
While it does not ultimately affect my decision in this case, I note, generally, the approach taken by his Honour Gray J. In any event, it is to some extent a matter remaining within my discretion and in the circumstances I choose to treat it as a financial resource. It is a matter which would therefore be significant because of its size in my consideration of factors under s 19(2) of the Domestic Relationships Act 1994 (ACT).
Contributions
The respondent asserted that the relationship was of a sexual nature as opposed to being a partnership.[44] However, the applicant asserted that she performed house duties at the respondent’s house in N, cared for the child and worked in the respondent’s business.[45] The respondent accepts that the applicant did perform house duties such as cleaning and ironing but asserts that he paid her in cash for performing these duties.[46]
[44] Affidavit of the respondent, 10 October 2006, [8]
[45] Affidavit of the applicant, 21 September 2006, [25]-[38].
[46] Affidavit of the respondent, 10 October 2006, [48].
The applicant acknowledges in her Affidavit that she has not made any significant financial contribution to the company or the respondent’s properties during the relationship.[47]
[47] Affidavit of the applicant, 21 September 2006, [14].
During the course of submissions,[48] Ms Tonkin, on behalf of the applicant, suggested that the contributions up to the time of the hearing by her client should be regarded as being 20 per cent. She excluded from consideration as a contribution (as opposed to a s 19(2) factor) the continuing contribution of her client.
[48] Transcript, 27 February 2007, 356 ff.
The basis for that calculation was:[49]
… a minor contribution in respect of the business for a period of five years, five per cent. … we solely raised the child since her birth in October to date, ten per cent. … performed home duties, including cooking, cleaning, washing clothes etc, five per cent …
[49] Ibid 358.
This is, in the circumstances, during the course of a very short and turbulent relationship, in my opinion, an exaggeration of the contributions made by the applicant.
If I am to exclude the continuing contribution made by the applicant as parent in relation to E (a matter which I consider to be significant), then, in my opinion, the applicant’s contributions both non‑financial and as parent to the date of the hearing would be appropriately quantified as at 10 per cent.
Mr Nash, on behalf of the husband, was even more miserly in his calculation of the quantity of the applicant’s contributions asserting it was 5 to 10 per cent “being effectively the post-separation care of [the child]”.[50]
[50] Ibid 382.
I regard that assessment of the applicant’s contribution as being unreasonably low, taking account as it did of some many years of post-separation care of the child without there being necessarily any significant contribution financially from the respondent (even if his contribution was in accordance with the law the appropriate amount under the Child Support (Assessment) Act 1989 (Cth)).
The respondent, in addition to the three assets being the house in N, ACT, the farm in NSW and his business, had contributed during the relationship from his compensation claim and also from the inheritance from his applicant as appears from the evidence. His contributions were, in the overall context of things, overwhelming. He was also the sole contributor, directly at least, to his superannuation.
Section 19(2) Factors
These factors seem to me in this matter to be as follows:
a)The disparity in the age of the parties and the fact that, by the time of this judgment at least, the respondent would be approaching the age, possibly with a diminished business, (although the evidence about that is unreliable for these purposes,) potentially with only superannuation to rely upon as income and some measure of ill-health. I am unimpressed, however, with the evidence of his inability to work in the context of his successfully (apparently) managing his business for some time.
b)The continuing care by the applicant of the child (disregarded as a continuing contribution above).
c)The respondent’s superannuation. This in value is equivalent to (as I calculated previously) about 33 per cent of the net asset pool (excluding the superannuation).
d)The applicant’s lack of gainful employment or other income. In addition, as I indicate below I propose to reject the applicant’s claim for lump sum child support and that will probably bring about a situation where the amount of child support she receives in accordance with an appropriate assessment under the Child Support (Assessment) Act 1989 (Cth) from the respondent will be relatively small into the future.
Mr Nash, on behalf of the respondent, suggested that a 20 per cent adjustment for s 19(2) factors would be “a dramatic and unwarranted adjustment”.[51] I do not agree that an adjustment of that sort would be either “dramatic” or “unwarranted”.
[51] Ibid 383.
Any consideration and weighing up of these disparate elements must necessarily to some extent be an “intuitive synthesis”. As the Full Court of the Family Court has said in Pastern & Pastern:[52]
It is in the nature of a discretionary determination that there is necessarily a gap between identifying and considering relevant factors, and expressing a conclusion as to the cumulative effect of those factors…a point would necessarily have to be reached where [a Judge] move[s] from a qualitative discussion of those factors to a quantitative reflection of them in the form of a s 75(2) adjustment [under the Family Law Act 1975 (Cth)].
[52] Pastern & Pastern [2007] FamCA 620, [99] (Finn, Coleman & May JJ).
His Honour Coleman J also observed in Steinbrenner & Steinbrenner [53] that “there will inevitably be a ‘leap’ from words to figures.”[54]
[53] Steinbrenner & Steinbrenner [2008] FamCAFC 193.
[54] Steinbrenner & Steinbrenner [2008] FamCAFC 193, [234] (Coleman J).
I believe, in the circumstances, that an adjustment of 17 per cent would be appropriate. This figure is an “intuitive synthesis” of the factors I have set out above and takes account of the fact that the superannuation that the respondent has (totally un-contributed to (except indirectly) by the applicant) is such a major adjusting factor.
Summary
This means that the applicant would receive 27 per cent in total of the net asset pool, which is $95,427 which I round up to $95,500. I am obliged under the Domestic Relationships Act 1994 (ACT) to make orders that are just and equitable.[55] To make such an order would, unless the respondent has, like Claus von Bülow, had a recent and dramatic reversal of fortune, require the liquidation of some part of his asset base.
[55] Domestic Relationships Act 1994 (ACT) s 15(1).
In reality, it means that he must sell one of his two properties. The farm has never been, it would appear from the evidence of the accountants (particularly Mr P) a going concern in any real sense of the word. If he were to retain the N, ACT property which he had renovated he could dispose of the farm property and pay the amount due to the applicant. He should have a period in which to pay her. I note that he had proposed he pay her $53,000 in his orders sought and required only 42 days in which to make that payment. It would be reasonable if he had 90 days in which to make the total payment that I have referred to above. It is no part of my orders or my consideration that the farm property must be sold or be ordered to be sold. The orders I make can be satisfied (possibly) by the respondent borrowing funds or the sale of the N, ACT property. If the respondent chooses to sell the NSW farm property that will be a personal decision and is consistent with my orders operating in personam.
The applicant’s contributions in relation to house work were belittled by the respondent. She on the other hand, sought to give them a significance which I doubt in the circumstances of their relationship they warranted. I believe that her contributions in this regard were somewhat less than she was asserting and more than the respondent was asserting. Necessarily this is a matter difficult to quantify but I have taken it into account in my overall consideration of the contributions.
Lump sum claim for child support
The applicant’s claim for child support was outlined in her written submissions dated 27 February 2007 which in her oral submissions Ms Tonkin asserted were the only matters I needed to take into account. She stated[56] that the special circumstances required to be found by me under the Child Support (Assessment) Act1989 (Cth) were that:
The applicant is in receipt of an income tested pension and is responsible for full-time parenting of her child and has no significant earning capacity (she is unskilled) whilst the husband runs his own […] business and has potential to receive income from the business in the range of $92,000 pa.
[56] Submissions of the applicant, [32].
I pause to comment that I am unsatisfied that the applicant does not have some earning potential given her age and background, although I accept that her care for the child will to some extent diminish that ability. I do not accept that the husband’s income was at the time of the hearing or is in the vicinity of $92,000 a year. Precisely what his income is might be is a matter of some conjecture and I suspect it is probably more than his declared income for taxation purposes. However, none of the evidence before me would convince me that taking account not only of the income derived by the business but also the outgoings of the business, evidence of which was not the subject of consideration by Mr Z that I could determine with any confidence at all that his income was anything like the figure suggested by Ms Tonkin.
Ms Tonkin then suggested that the application before me related to his income as it was then declared to the Child Support Agency would have been inadequate and would have been an unjust result so far as the child and her applicant were concerned. While superficially attractive as an argument, that submission fails to take account of the Child Support (Assessment) Act 1989 (Cth) and the relevant provisions which deal with child support by linking it to income – high or low.
In such circumstances, I cannot see that I could justify a departure order; let alone a departure order to a lump sum as suggested by Ms Tonkin; let alone a departure for a lump sum of $50,000 (in the overall context of this matter which would represent a significant proportion of the collective assets of the parties) as was further suggested by Ms Tonkin.
I, therefore, do not need to consider whether such a departure order would be just and equitable in accordance with s 117(1) of the Child Support (Assessment) Act1989 (Cth) or that it was in the circumstances “proper”.[57] I note in passing that for the Reasons I have set out above, I do not accept that it would be just and equitable. However, I do accept that, taking account of the burden that might be placed on a taxpayer, it might have been “otherwise proper”. Accordingly, that application is dismissed.
[57] In accordance with the principles outlined in Gyselman & Gyselman ((1992) FLC 92-279, 79-060 (Nicholson CJ, Fogarty and Ngyh JJ).
Children’s matters
In relation to children matters I note that these are to be the subject of a separate hearing before me in November 2009 and I make no further comment at this point.
Conclusion
I make orders in accordance with my Reasons. The proceedings for the property matters are removed from the active cases list.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Associate:
Legal Associate:
Date: 5 November 2009
Endnote 1
Minute of Orders Sought by Applicant – 18 October 2006
1.Order that pursuant to section 25 of the Domestic Relationships Act 1994 the respondent shall pay the applicant 40% of the total value of his assets as determined by this Honourable Court, within 30 days.
2.Order that pursuant to section 124 of the Child Support (Assessment) Act 1989 the respondent [father] is ordered to provide child support to the applicant [mother] for the child [E] born […] October 2003 (assessment number […]) by way of lump sum payment of $50,000, within 30 days.
3.Order that the respondent shall pay the applicant $50,000 by way of contribution towards her costs, within 30 days.
4.Order that if the respondent fails or neglects to comply with Orders 1, 2 or 3 within 30 days, then the applicant is appointed sole trustee for the sale of the property known as [the NSW Farm] more properly known as Lots […] in Deposited Plan […] […] Shire (“the [NSW] Farm”) upon the following conditions: -
a.The applicant shall solely appoint the real estate agents and/or auctioneers and conveyancing lawyers and she shall have sole occupation of the [NSW] Farm and the respondent is restrained from entering or approaching within one kilometre of the [NSW] Farm;
b.The applicant may sell the [NSW] Farm for a reserve price of no less than $110,000.00;
c.A Registrar of this Honourable Court is appointed pursuant to section 26 of the Act to execute any documents, deeds or instruments necessary to effect this order including agency agreements, auction agreements, contracts, transfers, discharge and settlement authorities.
5.Order that upon completion of the sale of the [NSW] Farm, the proceeds shall be disbursed as follows: -
a.First, in payment of the costs of sale including agents and auctioneers commissions, conveyancing costs and any rates and/or utilities adjustments;
b.Secondly, to discharge any registered encumbrance including loan from Westpac secured by mortgage over the property;
c.Thirdly, the remainder shall be paid to the applicant.
6.Order that if the payment referred to in Order 5(c) is insufficient to fully discharge Orders 1, 2 and 3 including interest at the prescribed rate, then the applicant is appointed sole trustee for the sale of the property known as [N property] ACT more properly described as [N], Section […] Block […] on Deposited Plan […] (“the [N] Property”) upon the following conditions: -
a.The applicant shall solely appoint the real estate agents and/or auctioneers and conveyancing lawyers, the respondent must give vacant possession of the [N] Property within 21 days and the applicant shall have sole occupation of the [N] Property and the respondent is restrained from entering or approaching within 300 metres of the [N] Property thereafter;
b.The applicant may sell the [N] Property for a reserve price of no less than $280,000.00;
c.A Registrar of this Honourable Court is appointed pursuant to section 26 of the Act to execute any documents, deeds or instruments necessary to effect this order including agency agreements, auction agreements, contracts, transfers, discharge and settlement authorities.
7.Order that upon completion of the sale of the [N] Property, the proceeds shall be disbursed as follows: -
a.First, in payment of the costs of the sale including agents and auctioneers commissions, conveyancing costs and any rates and/or utilities adjustments;
b.Secondly, to discharge any registered encumbrance including loan from Westpac secured by mortgage over the property;
c.Thirdly, the remainder shall be paid to the applicant’s solicitors to be held in trust for the following purposes: -
i.The amount necessary to discharge Orders 1, 2 and 3 including interest shall be paid to the applicant; and
ii.The remainder shall be paid to the respondent.
8.Declaration pursuant to section 40 of the Act that until the applicant receives full payment of all monies awarded to her pursuant to Orders 1, 2 and 3 including any prescribed interest that she has a secured charge in the [NSW] Farm, the [N] Property and in [C] Pty Limited.
9.Order that the applicant be restrained from suing upon or otherwise asserting each and every cause of action, if any, which the applicant has against the respondent or [C] Pty Limited by reason of any act, neglect or default in the course of or in connection with the domestic relationship between the parties or the employment relationship between the applicant and [C] Pty Limited.
10.Order that the respondent be restrained from suing or otherwise asserting each and every cause of action, if any, which the respondent has against the applicant by reason of any act, neglect or default in the course of or in connection with the domestic relationship between the parties.
11.Order that the respondent cause [C] Pty Limited to desist from suing upon or otherwise asserting each and every cause of action, if any, which it has against the applicant by reason of any act, neglect or default in the course of the employment relationship between the applicant and [C] Pty Limited.
12.Order that the parties shall attend the Parenting Order Program at [M] Children’s Centre.
13.Order that the respondent’s application to vary the Orders in relation to the child [E] born […] October 2003 is dismissed.
Endnote 2
Minute of Orders Sought by Respondent – 20 October 2006
1.That all previous parenting Orders made by the Court be discharged.
2.That both parents have equal shared parental responsibility for the child [E] born […] October 2003.
3.That the child live with her mother.
4.That each of the parties take all reasonable steps to ensure that the child spend time with and communicate with the father as follows:
i.For a period of 12 months as follows:
a.For a period of three months for two block periods of time each week, each period to be two hours in duration and occurring on Tuesdays and Fridays each week from 1pm to 3pm;
b.After the intial three month period for a further period of three months for one block period of time each week from 10am to 4pm each Wednesday;
c.After the second period of three months for a further period of three months each alternate weekend from 5pm on Friday to 5pm on Saturday;
d.After the third three month period for a further period of three months each alternate weekend from 5pm on Friday to 5pm on Sunday.
ii.After the 12 month period:
a.Each alternate weekend from 5pm on Friday to 5pm on Sunday;
b.Each Wednesday evening from 4pm to 8pm.
iii.Once the child commences school as follows:
a.During school terms at the times set out in Order 4(ii) above; and
b.For the first half of all school holiday periods commencing in years ending in an odd number and the second half of all school holiday periods commencing in an even number.
2.That for the purpose of Order 4 above in the absence of any written agreement between the parties to the contrary the following Orders apply:
a.The first half of school holidays is deemed to commence at the end of classes on the last day of school;
b.The second half of the December/January school holidays is deemed to commence at 5pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year; and
c.The second half of all other school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays.
3.After the 12 month period referred to in Order 4(i) above but otherwise notwithstanding these Orders the child live with her mother from 9am – 5pm each Mother’s Day and with her father from 9am to 5pm each Father’s Day
4.After the 12 month period referred to in Order 4(i) above but otherwise notwithstanding these Orders if the mother’s birthday or the father’s birthday falls on a day when the child would otherwise be living with the other parent the following Orders apply:
a.That if the mother’s or father’s birthday falls on a weekday the child shall spend time with the parent having the birthday for a period of at least three hours at a time agreed between the parties but failing such agreement from 4pm until 7pm;
b.That if the mother’s birthday or father’s birthday falls on a weekend the child shall spend time with the parent having the birthday from 9am until 5pm on the birthday.
5.After the 12 month period referred to in Order 4(i) above but otherwise notwithstanding these Orders on the child’s birthday each year the parent with whom the child is living will make the child available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents but failing such agreement from 5pm until 7pm.
6.After the twelve month period referred to in Order 4(i) above but otherwise notwithstanding these Orders on Christmas day each year the parent with whom the child is living will make the child available to spend time with the other parent for a period of at least four hours at a time to be agreed between the parents but failing such agreement from 2pm until 6pm.
7.That in the event that the father does not spend time with the child as scheduled make up contact shall occur the following week or as agreed in writing between the parties.
8.That the mother be restrained from changing the child’s surname from [Mazzotti-Aldridge] to [Aldridge].
9.That both parents be and are hereby restrained from changing the place of residence of the child from the Australian Capital Territory/Queanbeyan area without the prior written consent of the other party or an Order of the Family Court.
10.That both parents be and are hereby restrained from taking the child out of the Commonwealth of Australia without the prior written consent of the other party or an Order of the Family Court.
11.That neither party say unkind or uncomplimentary things about the other to or in the presence or hearing of the child or cause or allow anyone else to do so.
12.That neither party shall unreasonably refuse to allow the child to accept gifts from the other parent or from friends or family of the other parent.
13.That by way of full and final property settlement the father pay to the mother the sum of $53,000 within 42 days.
14.That unless otherwise specified in these Orders:
a.Each party be solely entitled to the exclusion of the other to all other property in the possession of such party at the date of these Orders.
b.Each party forego any claims he or she may have to any superannuation benefits belonging to or earned by the other.
c.Insurance policies remain the sole property of the owner named herein.
d.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that other is entitled pursuant to these Orders.
15.That the mother’s Application for Review of the Child Support Assessment and lump sum Child Support be dismissed.
Endnote 3
Proposed Draft Orders drafted in Chambers 29 July 2009
1.[The mother] have sole parental responsibility for [the child] born […] October 2003.
2.[The child] will live with her mother.
3.Unless the parents otherwise agree [the child] will not spend any time with her father.
4.The mother be and is hereby restrained from changing the address of the child from the Australian Capital Territory or Queanbeyan area without the written agreement of the father or order of the Court.
5.The mother keep the father advised of the address at which [the child] is living, the school she is attending and any medical issues about her. In particular the mother will advise the father within 24 hours of any event which causes [the child] to be hospitalised.
6.Otherwise all other parenting orders in relation [to the child] are dismissed and the issue is removed from the pending cases list.
7.
5
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