FAMILY COURT OF AUSTRALIA
| ASTOR & ASTOR | [2007] FamCA 355 |
| FAMILY LAW – CHILDREN – LIVING ARRANGEMENTS – Best interests – Parents agreed equal shared parental responsibility – Children closely attached to both parents – Parents’ residences proximate – Consideration of statutory factors – Order made for children to spend equal time with each of the parents on the week about basis FAMILY LAW – PROPERTY SETTLEMENT – Companies - Directors’ loan accounts – Treatment of intercompany debt – Claimed add backs (disallowed) - Allegation of nondisclosure of unbanked business income (not proved) – Significant liabilities – Treatment of liabilities - Adjustment for liabilities - Just and equitable division - Property divided 60%/40 % |
| Family Law Act 1975 (Cth) – s 65DAA, s 60CA, s 60CC, s 60B(1)(a), s 60B(2)(a) Family Law Act 1975 (Cth) – s 79, s75(2) |
Barker & Barker [2007] FamCA 13
Black and Kellner (1992) FLC 92 -287
C v O’N [2003] FMCAfam 154
Chang and Su (2002) FLC 93-117
Coghlan and Coghlan (2005) FLC 93-220
Cordelia Holdings Pty Ltd v Newky Holdings [2004] FCAFC 48
Cunningham and Cunningham (2005) FLC 93-212
Farmer and Bramley (2000) FLC 93-060
Figgins and Figgins (2002) FLC 93-122
GBT v BJT [2005] FamCA 683
Giunti and Giunti (1986) FLC 91 -759
C & C [1998] FamCA 143
K & K [2002] FamCA 1150
Kessey and Kessey (1994) FLC 92-495
McF v McF [2004] FamCA 1309
Mezzacappa and Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853
Monte and Monte (1986) FLC 91 -757
Omacini v Omacini (2005) FLC 93-218
Phillips and Phillips (2002) FLC 93-104
Pierce and Pierce (1999) FLC 92-844
T & N [2001] FMCAfam 222
Weir and Weir (1993) FLC 92-338
| APPLICANT: | Mrs Astor |
| RESPONDENT: | Mr Astor |
| FILE NUMBER: | BRF | 899 | of | 2004 |
| DATE DELIVERED: | 24 April 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | O’Reilly J |
| HEARING DATE: | 12, 13, 14, 15, 16 February and 3 April 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Forrest of Counsel |
| SOLICITOR FOR THE APPLICANT: | Mr Munro of Mylne Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Ms Miller of Fitz-Walter Lawyers |
ORDERS
Children
IT IS ORDERED
The children live with the parties:
(a)In alternate weeks from Friday after school until the commencement of school the following Friday morning, the first such week with the husband to commence on whichever Friday which, ordinarily, the children would commence to spend five nights with him according to the current arrangements;
(b)For half of each school holiday period as agreed between the parties, but failing agreement the first half of the holiday period in odd numbered years and the second half of the holiday period in even numbered years.
AND IT IS ORDERED BY CONSENT
In terms of the minute of orders annexed and marked A.
AND IT IS FURTHER ORDERED
The original minute of orders signed by the parties be placed and remain on the Court file.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these…
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- Astor & Astor [2007] FamCA 355
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- [2007] FamCA 355
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CaseChat Overview and Summary
The court was required to determine the best interests of the children in relation to their living arrangements, considering the statutory factors under the *Family Law Act 1975*. Additionally, the court had to adjudicate on the division of the parties' property, which involved complex issues relating to companies, directors' loan accounts, intercompany debt, alleged undisclosed income, and significant liabilities.
In relation to the children, the court noted the parents’ agreement for equal shared parental responsibility and the children's close attachment to both parents, as well as the proximity of their residences. Applying the statutory factors, the court ordered that the children live with each parent on an alternate week basis. For property division, the court considered the valuation of various assets, including shares in companies, artwork, and superannuation, as well as liabilities such as mortgages and debts owed to the ATO. The court disallowed claimed add-backs and did not prove allegations of undisclosed income. After considering all factors, the court ordered a division of the net property pool, with the husband to receive 60% and the wife 40%. The orders detailed the specific assets and liabilities to be allocated to each party and outlined the process for the transfer of the former matrimonial home and the subsequent financial adjustments required to achieve the determined property division.
Orders
Orders of the court
Children
IT IS ORDERED
1.
The children live with the parties:
(a) In alternate weeks from Friday after school until the commencement of school the following Friday morning, the first such week with the husband to commence on whichever Friday which, ordinarily, the children would commence to spend five nights with him according to the current arrangements;
(b) For half of each school holiday period as agreed between the parties, but failing agreement the first half of the holiday period in odd numbered years and the second half of the holiday period in even numbered years.
AND IT IS ORDERED BY CONSENT
2.
In terms of the minute of orders annexed and marked A.
AND IT IS FURTHER ORDERED
3.
The original minute of orders signed by the parties be placed and remain on the Court file.
4.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create, the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with these orders are set out in the Fact Sheet attached and those particulars are included in these orders.
Property
IT IS ORDERED
1.
The orders made on 11 August 2006 and 3 November 2006 appointing Mr S, solicitor, as the trustee for the sale of the business B on behalf of O Pty Ltd and for the sale of the former matrimonial home at R are discharged.
AND IT IS FURTHER ORDERED
Pursuant to s 79 of the Family Law Act 1975 the property and assets of the parties or either of them be divided in accordance with the following:
1.
The husband have:
(a) The former matrimonial home at R, valued at nil (having regard to the husband’s obligations in paragraph 3
(b) The shares in A Pty Ltd valued at $221,554
(c) The artwork known as T, L, F (artist …, the husband’s father) and the K etching gifted to the husband by his parents for his 30th birthday, valued collectively at $23,200
(d) The furniture and chattels in his possession (including a second K etching gifted to him by his parents for his 40th birthday), valued at $3,630
(e) His jetski, valued at $6,750
(f) The debt due by the husband’s mother and brother, valued at $35,000
(g) His superannuation, valued at $51,078
(Total value, $341,212)
(h) Plus or minus the amount to be paid by the husband to the wife, or the wife to the husband pursuant to paragraph 5(c).
2.
The wife have:
(a) The shares in O Pty Ltd valued at $121,952
(b) The furniture and chattels in her possession, valued at $7,647
(c) The jewellery in her possession, including the P, valued at $10,202
(d) Her superannuation, valued at $30,613
(Total value, $170,414)
(e) Plus or minus the amount to be paid by the husband to the wife, or the wife to the husband pursuant to paragraph 5(c).
3.
The parties, by their solicitors, arrange for the transfer of the former matrimonial home at R from Mr S to the husband, to occur as soon as may be practicable, but not earlier than the (anticipated) dismissal of the ATO’s application for the winding up of O Pty Ltd, upon the following payments by the husband, either at or prior to settlement, each payment being a condition of the transfer:
(a) The amount required by Westpac Banking Corporation to discharge the mortgage registered no. … and the guarantee dated 21 September 2001 by O Pty Ltd
(b) The amount required by the ATO to discharge the debt or debts owing to it by O Pty Ltd, sufficient to achieve the dismissal of the ATO’s current winding up application against O Pty Ltd
(c) The amount of $130,050 owed by O Pty Ltd to A Pty Ltd
(d) The amount owing by the parties and/or O Pty Ltd to Mr S in relation to his role as trustee, including the amount of any commission payable by Mr S to U Company.
4.
The parties share equally:
(a) The amount which the husband is required to pay at or before settlement to achieve the transfer to him of the former matrimonial home less the agreed value of the former matrimonial home, $955,000
(b) The ATO’s costs of the winding up application against O Pty Ltd (to the extend not already paid by the husband pursuant to paragraph 3(b)), and the wife’s costs relating to that application
(c) The wife’s debt to Mr C, $17,000
(d) The wife’s debt to Mr Y, $12,371
(e) The wife’s credit card debt (business use), $4,590
(f) The wife’s Centrelink debt, $3,439.
5.
After the settlement of the transfer to the husband of the former matrimonial home, the parties, by their solicitors, calculate:
(a) The amount paid by the husband pursuant to his obligations in paragraph 3
(b) The amount referred to in paragraph 4(a) and
having regard to the values in paragraphs 1 and 2, the matters in paragraph 4 and the calculations referred to:
(c) The amount to be paid by the husband to the wife, or by the wife to the husband, to effect a division of the parties’ property 60% to the husband and 40% to the wife
(d) The amount to be paid by the husband to the wife, or the wife to the husband, having regard to the amount in paragraph 5(c), but taking into account also the husband’s debt to the wife of $8,442 payable pursuant to the order of the Honourable Justice Jordan made on 8 August 2006.
6.
The husband pay to the wife, or the wife to the husband, the amount represented by the calculation in by paragraph 5(d).
7.
The husband take all steps and sign all documents necessary to resign as a director of O Pty Ltd.
8.
The wife indemnify the husband in relation to:
(a) The O Pty Ltd directors’ loan account; and
(b) All debts of O Pty Ltd (except the debts owed to the ATO and APP, which are to be discharged pursuant to this order).
9.
The husband indemnify the wife in relation to:
(a) The A Pty Ltd directors’ loan account; and
(b) All debts of A Pty Ltd.
10.
Otherwise, the parties are to retain all assets, liabilities and financial resources in their respective name or possession.
11.
Unless otherwise specified in this order:
(a) each party is solely entitled to the exclusion of the other to all property and assets (including choses in action) in the possession of that party as at the date of this order;
(b) each party is solely entitled to the credit of any moneys in any bank accounts in his or her name;
(c) each party is to forego any claim he or she may have to any superannuation benefits belonging to or earned by the other;
(d) each party is to be solely liable for and to indemnify the other against any liabilities encumbering any item of property or any asset to which that party is entitled pursuant to this order.
12.
The parties are to sign all documents necessary to give effect to this order and in default a Registrar of this Court is empowered to sign all such documents.
13.
The parties have liberty to apply, on short notice, by arrangement with the Associate:
(a) Under the slip rule;
(b) If I should have made any calculation errors in the Reasons for Judgment or this order;
(c) If the parties, by their solicitors, should be unable to agree the calculations required by this order;
(d) If any further machinery or other orders may be necessary to carry out this order or to give effect to the decision; or
(e) If clarification of any part of the decision or order should be required.
AND IT IS FURTHER ORDERED
1.
If the husband should be unable or unwilling to perform the conditions relating to the transfer to him of the former matrimonial home, or if the current ATO winding up application against O Pty Ltd should proceed, any application by the parties pursuant to s 79A of the Family Law Act 1975 be listed before the Honourable Justice O’Reilly as a matter to be accorded priority.
2.
The wife, as soon as possible, deliver up to the husband’s mother, the artwork known as U, and obtain from the husband’s mother’s art gallery a written acknowledgement of the delivery.
3.
The application in a case filed on 7 March 2007 by Mr S, trustee, is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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