Allen and Allen

[2013] FamCA 1120

FAMILY COURT OF AUSTRALIA

ALLEN & ALLEN [2013] FamCA 1120

FAMILY LAW – CHILDREN – Final orders by consent – equal shared parental responsibility.

FAMILY LAW – PROPERTY – Final orders made by consent – just and equitable.

Family Law Act 1975 (Cth)

APPLICANT: Ms Allen

RESPONDENT: Mr Allen

FILE NUMBER: MLC 3895 of 2012

DATE DELIVERED: 12  December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 12 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fisken

SOLICITOR FOR THE APPLICANT: Croxford Partners

COUNSEL FOR THE RESPONDENT: Ms M Barbayannis

SOLICITOR FOR THE RESPONDENT: Barbayannis Lawyers

ORDERS

IT IS ORDERED BY CONSENT THAT

Parenting

1. The parties have equal shared parental responsibility for the children of the marriage:

   B born … 2002;
   C born … 2005
   (“the children”)

2. The children live with the wife.

3. The children spend time and communicate with the husband as follows:

   a.   During school term periods:

   i.Each alternate week from the conclusion of school (or 3.30 pm on a non-school day) Wednesday until the commencement of school Monday (9.00 am if a non-school day), commencing 11 December 2013 and it is noted that if the father’s time falls on Melbourne Cup weekend his time shall conclude at 6.00 pm on Melbourne Cup Day; and

   ii.Each alternate Thursday, from the conclusion of school (or 3.30 pm on a non-school day) until 8.00 pm, commencing 19 December 2013.

   b.   During school holiday periods:

   i.Subject to paragraph 13 hereof, for one half of the school term holiday periods at dates and times as agreed, and failing agreement for the first half in 2014 and each alternate year thereafter, and the second half in 2015 and each alternate year thereafter with changeover to take place at 12.00 pm (midday) on the middle Saturday of the relevant holiday period.

   ii.For one half of the long summer holiday period at dates and times as agreed and failing agreement:

   1.In 2013/2014, on a week about basis, commencing at 12.00 pm on Saturday 29 December 2013 with the children to be returned to the wife at 12.00 pm (midday) on the day prior to the commencement of the children’s school.

   2.For the first half of the long summer holiday period in 2014/2015 and each alternate year thereafter, with changeover to take place at 12.00 pm (midday) on the middle day.

   3.For the second half of the long summer holiday period in 2015/2016 and each alternate year thereafter with changeover to take place at 12.00 pm on the middle day and the children be returned to the wife at 12.00 pm on the day prior to the commencement of the children’s school.

   4.For the sake of clarity, the long summer holiday period is deemed to commence at 12.00 pm on the day following the conclusion of the school year, and conclude at 12.00 pm on the following day prior to the commencement of the school year.

   c.   At Christmas:

   i.From 5.00 pm Christmas Eve until 5.00 pm Christmas Day 2013 and each alternate year thereafter; and

   ii.From 5.00 pm Christmas Day until 5.00 pm Boxing Day in 2014 and each alternate year thereafter.

   d.   At Easter:

   i.In 2014 and each alternate year thereafter, from 9.00 am on Good Friday until 3.00 pm Easter Sunday; and

   ii.In 2015 and each alternate year thereafter, from 3.00 pm Easter Sunday until 5.00 pm Easter Monday (or the commencement of school if a school day).

   e.   On Father’s Day weekend, from 7.00 pm on the Saturday before Father’s Day until the commencement of school on the day following Father’s Day.

   f.   On husband’s and children’s birthdays:

   i.If on a school day, from the conclusion of school until 6.30 pm; and

   ii.If on a non-school day, from 12.00 pm until 4.00 pm.

   g.   On New Years Day, from 3.00 pm until 7.00 pm if the children are not otherwise spending time with him.

   h.   Such further or other time as may be agreed.

4. If the children are otherwise in the care of the husband, his time be suspended and the children be in the care of the wife at the following times:

   a.   On Christmas Day:

   i.From 5.00 pm Christmas Day until 5.00 pm Boxing Day in 2013 and each alternate year thereafter;

   ii.From 5.00 pm Christmas Eve until 5.00 pm Christmas Day in 2014 and each alternate year thereafter.

   b.   At Easter:

   i.In 2014 and each alternate year thereafter, 3.00 pm Easter Sunday until 5.00 pm Easter Monday (or the commence of school if a school day); and

   ii.In 2015 and each alternate year thereafter, from 9.00 am on Good Friday until 3.00 pm Easter Sunday.

   c.   On the wife’s and children’s birthdays:

   i.If on a school day, from the conclusion of school until 6.30 pm; and

   ii.If on a non-school day, from 12.00 pm until 4.00 pm.

   d.   On Mother’s Day weekend, from 7.00 pm on the Saturday prior until the commencement of school on the day following Mother’s Day;

   e.   On New Years, from 3.00 pm until 7.00 pm if the children are not otherwise spending time with her on New Years Day.

5. The children be at liberty to telephone each of their parents at all reasonable times and each party facilitate such phone calls.

6. Changeover occur at the children’s schools wherever possible and otherwise at the front of the wife’s home with the husband (or his nominee) to remain in his car.

7. Each party, their servants and/or agents be restrained by injunction from:

   a.   Abusing, insulting, belittling, rebuking or otherwise denigrating the other party, or any member of the party’s family or household in the presence or hearing of the children or either of them; and

   b.   Discussing these proceedings with or in the presence or hearing of the children or either of them.

8. Each party be entitled to attend any school event to which parents are generally invited, and otherwise each party and/or their agents only attend the children’s school(s) whilst they are in their respective care.

9. Each parent authorise:

   a.   The children’s school(s) to provide the other parent with copies of all notices, newsletters, photograph order forms, reports and like documents.

   b.   The children’s treating medical practitioner and allied health professionals to communicate with the other parent as to the health and treatment of the children (or either of them).

10. Each parent immediately notify the other parent in the event that the children (or either of them) suffer any serious injury or illness whilst in their care.

11. Each party keep the other informed of their residential address, email address and telephone number at all times and notify the other within 7 days of any changes thereto.

12. In the event that either parent has a significant or special event such as a family gathering, christening, wedding or other special event that parent shall give 14 days written notice to the other parent of their desire for the children to spend that time with them, and the other parent will not unreasonably withhold their consent with make-up time to be afforded to the other parent as soon as practicable thereafter.

13. Each parent be at liberty to travel overseas with the children subject to:

a.   The travelling parent providing the other parent with no less than 28 days written notice of the proposed travel and such notice is to include the intended dates of departure and return, a copy of the return air tickets for the children, and a complete itinerary including details of where the children will be staying and contact telephone number at all times;

b.   Unless otherwise agreed, the husband being permitted to travel in 2015 and each alternate year thereafter;

c.   Unless otherwise agreed, the wife being permitted to travel in 2015 and each alternate year thereafter;

d.   The travel coinciding with the term 2 or term 3 school holiday periods, and the children shall be in the care of non-travelling parent for the entirety of the following term holiday period; and

e.   The travel being for no more than 3 weeks in total unless otherwise agreed.

14. In the event of the overseas travel as referred to in paragraph 13 hereof, the party travelling be entitled to have the children’s passports no less than 28 days prior to the designated date of departure, and otherwise the passports be held by the wife.

15. The time for provision of the passports to the parent travelling with the children be extended beyond the time provided for in paragraph 14 hereof in the event that the children’s passports are required to be submitted to the relevant consulate or embassy of a country where the children are travelling to enable the visas to be obtained for the children prior to travel.

16. On the expiration of the children’s passports (or either of them), both parents expeditiously execute all necessary documents to enable new passports to issue for the children, and any associated costs be borne equally by the parties.

17. 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 an comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property

18. The parties forthwith do all such acts and things and sign all such documents as may be required to place the real properties situate at and known as Unit 1 D Street, Suburb E (“Unit 1 D Street”) and Unit 2 D Street, Suburb E (“Unit 2 D Street) on the market for sale (“the sale”) on the following terms and conditions:

a.   That within 7 days, the husband nominate three real estate agents together with F Lty Ltd, and within 7 days thereafter, the wife select on such agents to be the selling agent (“the selling agent”).

b.   The wife’s solicitors to act on behalf of both parties as conveyancers for the sale;

c.   The reserve price for Unit 1 D Street be set at $300,000 unless otherwise agreed between the parties;

d.   The reserve price for Unit 2 D Street be set at $310,000 unless otherwise agreed between the parties;

e.   The properties be listed for public auction on or before 1 March 2014;

f.   Otherwise the terms and conditions of the sale be agreed between the parties, and in default of agreement, as recommended by the selling agent; and

g.   That each party be at liberty to communicate with the selling agent with respect to the sale, including the provision of any documents ordinarily provided to vendors.

19. The wife pay to the husband the following sums (with such sums to be paid to Barbayannis Lawyers for and on behalf of the husband):

a.   A payment of $20,000 within 14 days (“the first payment”);

b.   A payment of $350,000 on settlement of the sale (“the second payment”) minus the following amounts:

i.One half of the costs, commissions and expenses of the sale subject to paragraph 19A hereof; and

ii.One half of any CGT liability arising from the sale, with such  funds to be held on trust by the Wife’s Lawyers in an interest bearing account with any interest earned thereon to be retained by the Husband.

Save that if either Unit 1 D Street or Unit 2 D Street is sold and settled prior to the settlement of the sale of the other unit and there are funds remaining after the discharge of any encumbrance, the payment of sale costs and the holding of monies pursuant to paragraph 20(b) hereof, then such funds are to be forthwith released to Husband and to be applied in reduction or satisfaction of the second payment, subject to paragraph 19(b)(i) and (ii) hereof.

19 A. The husband and wife shall be equally liable for an CGT liability arising from the sale, save that the husband’s liability shall be limited to and capped at the reserve price(s) referred to in paragraph 18(c) and (d) hereof, and in the event that the units (or either of them) sell for more than the reserve price(s) then the wife shall be solely liable for the CGT component (if any)  referable/attributable to the difference between the ultimate sale price(s) and the reserve price(s) only.

20. In order to give effect to paragraph 19(b)(ii) hereof:

a.   The parties shall forthwith jointly approach a financial advisor/accountant to obtain an estimate of the CGT likely to arise from the sale of the husband’s liability pursuant to paragraph 19(a) hereof.  (“the CGT estimate”);

b.   On settlement, an amount equal to half of the CGT estimate shall be held on trust by the wife’s solicitors (and the amount payable to the husband pursuant to paragraph 19(b) shall be correspondingly reduced).

c.   By 30 July 2014, or otherwise within 14 days of the settlement of the sale (if such occurs after 30 July 2014) of both Unit 1 D Street and Unit 2 D Street, the wife forthwith do all such acts and things and sign all such documents as may be required to lodge her taxation return for the financial year ending 30 June 2014;

d.   Upon the issuing of the Notice of Assessment, the monies held on trust pursuant to paragraph 20(b) hereof shall be applied to discharge the husband’s half share of the CGT liability arising from the sale; and

e.   Any balance remaining thereafter shall be immediately released to the husband (and in the event that there is a shortfall between the CGT liability and the monies held in trust, then this shall be forthwith be paid by the husband to the ATO directly).

21. Contemporaneously with the settlement of the sale:

a.   The wife do all acts and things, and sign all such documents as may be necessary to discharge the loans in joint names to G bank (“the G bank loans”) and refinance in her sole name; and

b.   In the event that the net proceeds of the sale are insufficient to satisfy the second payment, the Wife pay to the husband any shortfall of the second payment.

c.   The husband at his expense, withdraw all caveats lodged by him or on his behalf against all the real properties and provide and lodge all relevant forms to facilitate same (including a withdrawal of caveat)  save that the caveats against Unit 1 D Street and Unit 2 D Street shall be withdrawn by 1 February 2014 to facilitate the sale.

22. In the event that the wife fails to comply with her obligations pursuant to either paragraphs 19 or 21 hereof, the property situate at and known as H Street, Suburb I (“H Street”) be forthwith placed on the market for sale upon such terms and condition to be agreed between the parties and failing agreement on such terms and conditions as directed by the President of the Real Estate Institute of Victoria, or their nominee, with the proceeds to be applied as follows:

a.   Firstly, to pay all costs, commissions and expenses of the sale;

b.   Secondly, to discharge any encumbrances secured over the property;

c.   Thirdly, to pay to the husband so much of the second payment as may be  outstanding together with interest thereon from the date of settlement of the sale calculated at 10 per cent per annum calculated monthly; and

d.   The balance to the wife.

23. Pending settlement of the sale:

a.   The wife be solely liable for and indemnify the husband against any and all apportionable outgoings of the real properties as and when they fall due, including any repayments due pursuant to the G bank loans and the wife be solely liable for any matters whatsoever arising from, relating to or connected with the said properties.

b.   The wife be solely entitled to any rental income received from the real properties;

c.   The wife have the sole use and occupation of J Street;

d.   Save as may be required to give effect to these orders, neither party further encumber the real properties without the consent in writing of the other party (and the wife is at liberty to drawdown the G bank loans in the sum of $20,000, and the husband shall do all acts and things and sign all documents necessary to facilitate same).

24. The wife retain for her sole use and benefit (and to the exclusion of the husband) the following assets:

a.   J Street, Suburb K (“J Street”);

b.   H Street, Suburb I;

c.   Her motor vehicle;

d.   The net proceeds of the sale (if any) after the payment of the monies owed to the husband pursuant to paragraph 19 hereof;

e.   Her savings; and

f.   Her superannuation entitlements.

25. The wife be solely liable for and indemnify the husband against any and all monies owing to her father, Mr L.

26. The husband retain for his sole use and benefit (and to the exclusion of the wife) the following assets:

a.   His motor vehicle (subject to finance)

b.   His savings; and

c.   His superannuation entitlements.

27. The husband be solely responsible for and indemnify the wife with respect to any matters arising from his employment with M Pty Ltd including but not limited to:

a.   Any monies owing to M Pty Ltd; and

b.   Any taxation liability (whether past, present or future) in his name, or arising from his employment with M Pty Ltd.

28. With 14 days, each party download any childhood photographs of the children that are in their respective possession, custody and/or control and provide a copy of same to the other party on a USB stick.

29. Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

a.   Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real properties being deemed to be in the possession of the wife);

b.   Monies standing to the credit of the parties in any joint bank account are to be divided equally, save for any offset accounts or redraw facilities regarding the properties.

c.   Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.

d.   Insurance policies remain the sole property of the beneficiary named therein;

e.   Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

f.   Any joint tenancy of the parties in any real of personal estate is hereby expressly severed.

30. In the event that either party refuses or neglects to execute a deed and/or instrument in compliance with the provisions of these orders, the Registrar or Deputy Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the non-complying party and do all acts and things to give validity and operation to the deeds and/or instruments.

31. All extant applications be dismissed and the final hearing before Justice Macmillan listed to commence on 17 February 2014 be vacated.

AND IT IS NOTED BY CONSENT THAT

A.     Any reference in these orders to the real properties is a reference to:

J Street, Suburb K (“J Street”)
H Street, Suburb I (“H Street”);
Unit 1 D Street Street, Suburb E (“Unit 1 D Street); and
Unit 2 D Street Street, Suburb E (“Unit 2 D Street”).

B. The husband has deposed, and continues to assert, that (as at the date of these orders) he has no interest in M Pty Ltd (and/or any associated entity) whether legal, equitable or otherwise. Should this not be the case, the parties agree this would constitute non-disclosure pursuant to s79A(1)(a) of the Family Law Act 1975.

C. Pursuant to s 81 of the Family Law Act 1975, the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and to avoid further proceedings.

D.    The agreed fees for the conveyancing with respect to sale of the units with the wife’s lawyer is $660 (including GST) plus disbursements.

IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allen & Allen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3895 of 2012

Ms Allen

Applicant

And

Mr Allen

Respondent

REASONS

1. This matter has been listed for a final hearing before me commencing on 17 February 2014.  It involves both parenting and financial issues.  There are two children of the marriage, aged 11 and eight respectively.  The children have been spending four nights per fortnight with the husband pursuant to orders made in August 2012.  In anticipation of the final hearing the parties have attended upon, and a report has been prepared by, Ms N in relation to the arrangements for these children. 

2. The orders which I am asked to make provide for an increase in the time the husband is to spend with the children to five nights per fortnight in a block period and essentially reflect the recommendations made by Ms N.  The orders are extremely detailed in relation to the arrangements for these children, including holidays and special occasions, overseas travel and the parties’ involvement in the children’s schooling and other activities.  I am satisfied that in all of the circumstances these orders are in the best interests of the children. 

The property proceedings 

1. The parties have attended mediation with an experienced member of counsel and, as a result of that mediation, have reached an agreement in relation to financial matters. 

2. Their marriage was of some fourteen years and they separated approximately two years ago.  It is submitted by Ms Fisken on behalf of the wife that the pool of assets is approximately $1.2 million made up essentially of four properties.  The main areas of dispute in relation to the property issues appear to have been what, if any, interest the husband had in the M Pty Ltd and both as to the quantum and whether or not monies advanced by the wife’s parents were in fact a loan or a gift. 

3. The wife who has the primary care of the children and will continue to do so pursuant to the orders I am asked to make today, works as a casual relief teacher earning between $25,000 to $30,000 per annum.  The husband is a qualified lawyer and engineer and the parties agree that he has a capacity to earn income in the range of $100,000 per annum.  He is presently working as a consultant after a period of being in receipt of Centrelink payments.  He presently pays the minimum child support payment but it is anticipated that those payments for child support will increase in accordance with the anticipated increases in his income. 

4. The orders that are proposed reflect a division of something over 70 per cent in the wife’s favour.  They provide that she retain the former matrimonial home and another investment property and the two other properties will be sold and a lump sum paid to the husband.  They reflect the pragmatic approach taken by the parties to the resolution of the matter. The monies advanced by the wife’s parents are taken into account in that proposed settlement. 

5. The parties are no longer married and do not live together.  They no longer have the common use of the property that they have acquired during that relationship, and the assumptions that underpinned the arrangements they made for their finances during their marriage are no longer appropriate.  It is in all of these circumstances that I am satisfied that it would be just and equitable to make an order for property settlement. I am also satisfied having regard to the submissions made by the parties and upon their urging that the orders themselves are just and equitable. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 12 December 2013.

Associate: 

Date:  28 May 2014