Austin and Austin (No 2)

[2013] FamCA 1119

FAMILY COURT OF AUSTRALIA

AUSTIN & AUSTIN (NO 2) [2013] FamCA 1119

FAMILY LAW – CHILDREN – Final orders by consent

FAMILY LAW – PROPERTY – Final orders by consent.

Family Law Act 1975 (Cth)

APPLICANT: Mr Austin

RESPONDENT: Ms Austin

INDEPENDENT CHILDREN’S LAWYER: Ms Jenkins

FILE NUMBER: MLC 11598 of 2011

DATE DELIVERED: 15 July 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 15 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dunlop

SOLICITOR FOR THE APPLICANT: Choice Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms M Barbayannis

SOLICITOR FOR THE RESPONDENT: Barbayannis Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Jenkins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

ORDERS

IT IS ORDERED BY CONSENT THAT

1. That all previous parenting orders be discharged.

2. That the Husband and Wife have equal shared parental responsibility for the child of the marriage D born … 2009 (the child)

3. That the child live with the Wife

4. That the child spend time with the Husband as follows:

   a.In each alternate weekend from the Saturday 12pm until Sunday 5pm commencing 13 July 2013 with this arrangement to continue until the child turns 5 years of age.

   b.Each Wednesday from the conclusion of kindergarten, or 12pm, until 6pm until the commencement of the kindergarten year 2014.

   c. 

   (i) each alternate weekend from 12pm Saturday until the commencement of kindergarten, or 12:45pm, on Monday commencing the first Saturday following the child’s fifth birthday.

   (ii) Each Thursday from the conclusion of kindergarten, or 3pm, until 6pm commencing from Term 1 2014.

   d. Commencing Term 1, 2015 and for the duration of that school year, during school terms, each Wednesday, or such other day as agreed between the parties, from the conclusion of school, or 3:30pm, until 6pm.

   e. Commencing Term 4, 2015, each alternate Wednesday from the conclusion of school until the commencement of school the following Thursday during school terms.

   f.During Term 1 2015 each alternate weekend from 10am Saturday until the commencement of School, or 9am on Monday, or 9am Tuesday if Monday is a non school day commencing the first Saturday following the commencement of the school term.

   g. Commencing Term 2, 2015 and thereafter, each alternate weekend, during school term, from the conclusion of school Friday until the commencement of School, or 9am, on Monday or 9am Tuesday if Monday is a non school day commencing the first Friday following the commencement school term.

   h. For the kindergarten term holidays in 2014 as follows;

   (i) For three consecutive nights and four full days in term 1 holidays.

   (ii) For four consecutive nights and five full days in term 2 holidays.

   (iii) For five consecutive nights and six full days in term 3 holidays.

   i.During the long summer school holidays 2013/2014 the Wednesday time in 4(b) commence at 10am.

   j. During the long summer school holiday period in 2014 / 2015 the child spend 7 consecutive nights to include the alternate weekend time referred to in paragraph 4(c)(i) herein with the child to continue to spend time with the Husband on alternate weekends in accordance with paragraph 4(c)(i) hereof for the balance of this vacation period.

   k.For half of the school term holidays commencing 2015 as agreed between the parties and in default of agreement the second half.

   l.For half of the long summer school holidays in 2015/16 and 2016/2017 on a week about basis.

   m.Thereafter, for half of all long summer school holidays as agreed between the parties and in default of agreement the first half.

   n.For 2 hours on the child’s and the Husband’s birthday, if a kindergarten or school day otherwise for 4 hours as agreed between the parties and default of agreement from 2pm.

   o.From 5pm the Saturday prior to Father’s day until 5pm Father’s day.

   p.From 10am Christmas Day until 6pm Boxing day each year.

   q.In the event that the Catholic and Orthodox Easter festival do not coincide the child spend time with the Father each alternate year from 4pm Easter Thursday until 4pm Easter Monday in 2015 and each alternate year thereafter. Such time to be included in the Term 1 school holiday time.

   r.In the event that the Catholic and Orthodox Easter festival coincide the child spend time with the Father from 4pm Easter Thursday until 4pm Easter Saturday.  Such time to be included in the Term 1 school holiday time.

   s. At such other times as may be agreed by the parties.

5. That the child's time with the Husband be suspended as follows:

   a.   From 5pm on the Saturday prior to Mother's Day until 5pm on Mother’s Day.

   b.   For two hours on the child's birthday and the Wife's birthday if a Kindergarten/school day otherwise for four hours as agreed between the parties and in default of agreement from 10am.

   c.For the entirety of the Orthodox Easter festival unless the Catholic and Orthodox Easter festival coincide and in such case from 4pm Easter Saturday; 

   d.For Orthodox Christmas being 5pm 6 January until 10am 8 January in each year;

   e.From 10am Christmas Eve until 10am Christmas Day each year;

   f.For 7 days during the 2013/2014 long summer holidays provided the Wife give the Husband 28 days notice of the proposed suspension.

   g.For seven consecutive nights during the 2014/2015 long summer holidays provided the wife give the husband 28 days notice of the proposed suspension.

6. That for the purposes of changeover which will not be at school or Kindergarten, the same is to take place at the Suburb E library in F Street, and both parties use their best endeavors to be punctual for the purpose of changeovers.

7. That the child communicate with either parent via telephone or skype at any reasonable times and each parent facilitate the child taking such call.

8. That until 31 December 2013 that during the overnight time that the child spends with the Husband either Ms G Austin, Ms T, Ms I or such other person agreed between the parties be present during such time as the child is sleeping.

9. That in the event that either party wishes to make an alteration to the arrangements for the child's care, such party arrange mediation prior to the institution of any further Court proceedings.

10. That unless in the case of any emergency, communication as between the parties be via the communication diary referencing matters important to the child, SMS or text message.

11. That the Husband, Wife and the child participate in counseling with a child psychologist as recommended by the Independent Children’s Lawyer such counseling be at the joint expense of the Husband and Wife for the purposes of ongoing family therapy. Such therapy to be reportable in the event of further proceedings.

12. That each party keep the other informed of their residential address and telephone number at all times and notify the other within seven days of any change to either their address or telephone number.

13. That each party shall notify the other as soon as possible of any illness or injury suffered by the child and any medical, dental, hospital or like treatment received by the child which occurred whilst the child was in the care of that party and the other party shall be at liberty to contact the doctor, dentist, hospital or other medical professional or like person who treated the child to make inquiries about the health of the child.

14. That both parties be at liberty to approach the schools or educational institutions attended by the child to obtain copies of school reports, photographs, newsletters, notices, and the like and further each party shall be at liberty to attend parent teacher nights, school concerts, prize and special nights, sporting events and like school functions.

15. That in the event that either parent has a significant or special event such as a family, christening or wedding that parent shall give notice to the other parent of their desire for the child to spend that time with them and attend the event and the parents may agree in writing by text message to vary the time that the child is to live with each of them so as to permit the child to attend the event and where variation of these orders is required then the parents shall arrange for make up time, provided that the parent seeking the variation provides the other parent 21 day's notice in writing of the special occasion.

16. For the purpose of the husband's holiday time referred to in paragraphs 4(h), 4(j), 4(k), 4(l) and 4(m) herein, the parties agree on the dates of said periods at least 28 days prior thereto.

16A.The Husband and the Wife be restrained from denigrating each other in the presence or hearing of the child or permitting anyone else to do so.

1. 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 are set out in the Fact Sheet annexed hereto and these particulars are included in these orders.

Property Orders

1. That within 90 days from the date hereof ("the date"), the Wife transfer to the Husband, at the expense of the husband, all of her right, title and interest in the property situate at and known as L Street, Suburb M ("Suburb M").

2. That contemporaneously with the transfer as referred to in paragraph 18 hereof, the husband:

   (a)discharge the mortgage to the Westpac Bank which encumbers Suburb M and refinance the same and remove the Wife as a liable borrower and indemnify the wife in respect thereof;

   (b)pay in full all Body Corporate fees and property rates outstanding as at the date of transfer and provide proof of payment at settlement; and

   (c)pay to the wife the sum of $70,000, ("the payment")

   (d)The balance to the Husband.

3. That that the Husband be at liberty to place the Suburb M property upon the market for sale prior to the date and the Wife do all such things and sign all such documents to enable such sale to occur.

4. That in the event that the Husband elects to sell the property in accordance with paragraph 20 herein the proceeds of sale be distributed in accordance with paragraph 19 herein.

5. That the Husband relinquish for all time, all of his right, title and interest in the property situate at and known as O Street, Suburb P (Suburb P) standing in the Wife's name alone and the wife indemnify the husband in respect of any liability encumbering Suburb P.

6. That in the event that the Husband has not complied with paragraphs 19(a), (b) and (c) hereof by the date, the Husband and Wife forthwith place the Suburb M property on the market for sale and following the settlement of the sale the proceeds be distributed as follows:

   (i)in payment of all costs, commissions and expenses of the sale;

   (ii)to discharge any mortgage;

   (iii)to pay in full all Body Corporate fees and property rates outstanding as at the date of settlement;

   (iv)so much of the payment that is then outstanding to the wife together with interest at the rate of 8.75 per cent per annum calculated daily from the date; and

   (v)any balance remaining to be paid to the Husband.

7. In the event that the Suburb M property has not been sold in accordance with paragraph 23 by 01 December 2013, the Wife engage a Real Estate Agent to sell the property and have carriage of the sale whereby both the Husband and the Wife agree on the reserve price and the method of sale (and in the event the parties are unable to so agree the engaged Real Estate Agent shall so decide the reserve price and method of sale) and, the net proceeds derived therefrom be disbursed in accordance with paragraph 23 hereof.

8. That pending the payment or completion of the sale:

   a.    the Husband have the sole right to occupy Suburb M.  During such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and like apportionable outgoings including Body Corporate fees of Suburb M as they fall due;

   b.    the parties hold their respective interests in Suburb M upon trust pursuant to these orders;

   c.    neither party shall encumber Suburb M without the consent in writing of the other party.

9. That pending the payment;

   a.    the Wife have the sole right to occupy Suburb P.  During such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and like apportionable outgoings of Suburb P as they fall due;

   b.    the parties hold their respective interests in Suburb P upon trust pursuant to these orders;

   c.    neither party shall encumber the Suburb P property without the consent in writing of the other party.

10. In the event the Suburb M property is to be sold in accordance with paragraph 20 or 23 herein, the Husband engage a Real Estate Agent to sell the property and have carriage of the sale.

11. If either party refuses to sign any document required to give effect to these Orders, a Registrar of the Family Court be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute all deeds and documents in the name of that party and do all acts and things necessary to give validity and operation to all such deeds and documents.

12. That the Husband retain for his own benefit absolutely, the business entitled Q Pty Ltd and the entities entitled Q Group Holdings, and S Pty Ltd and any other entities in which he has an interest and remain solely responsible for and indemnify the wife for all liabilities, past, present and future in respect of all entities included in this paragraph, including, but not limited to taxation liabilities.

13. That the Husband remain solely responsible for all credit card liabilities in his name and forthwith provide a withdrawal of caveat and withdrawal of caveat fee to Barbayannis Lawyers in respect of Suburb P.

14. That the Wife make available for collection by the Husband within 14 days the following:

    a.       His mountain bike;

    b.       His LCD projector;

    c.       His Couch;

    d.       Rug; and

    e.       Snow chains.

    f.       His Stereo.

15. That the Husband make available for collection by the Wife within 14 days the following:

    (a)   Her embroidered artwork.

16. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

    a.    Each party be solely entitled, to the exclusion of the other party, to all property (including choses-in-action) in the name or possession of the party;

    b.    Each party forego any claim or claims he or she may have to any superannuation benefits belonging to or earned by the other party;

    c.    Insurance policies and share portfolios remain the sole property of the owner named therein;

    d.    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;

    e.    Each party be solely responsible for any liability in their own name; and

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

AND THE COURT NOTES BY CONSENT

A. That pursuant to s.81 of the Family Law Act 1975 the parties intend, as far as practicable that these orders finally determine the financial relationship between them.

B.  In the event the child is unable to spend time with the Husband in accordance with these Orders the parties will use their best endeavours to provide the Husband with make-up time.

IT IS ORDERED BY THE COURT THAT

1. The appointment for the Independent Children’s Lawyer be discharged.

2. All extant applications be otherwise dismissed and the matter removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Austin & Austin (No 2) 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 11598 of 2011

Mr Austin

Applicant

And

Ms Austin

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS

1. This matter was listed for final hearing before me commencing this day.  The parties have reached agreement in relation to both parenting and financial matters. 

2. The husband is 39 years of age.  The wife is 32 years of age.  They commenced cohabitation in or about November 2006 and were married in 2008.  They separated in July 2011.  They had a relationship of something less than five years.  There is one child of their relationship, D, who was born in 2009 and is now four years of age.  The husband is a creative director in his own business earning a gross income of approximately $75,000 per annum.  The wife is employed as a public relations consultant and earns approximately $46,000 per annum. 

3. The parties have attended a roundtable conference with a view to resolving the parenting issues and the detailed final orders that are proposed reflect both the outcome of that roundtable conference and also are in accordance with the recommendations of the family consultant, Ms H.  They would appear to make careful and proper provision for the welfare of the child. 

4. In relation to the property, there is, I am told, a pool of property of approximately $460,000.  At the commencement of cohabitation, the wife was the registered owner of a property in Suburb P, and the parties obtained a retrospective valuation of that property. 

5. It is common ground that at the commencement of cohabitation the wife had assets valued at approximately $290,000. During the marriage she also received a TAC payment, which was referable both to the period prior to and during the relationship.  The husband’s business has not been valued.  Whilst it may have some value, it also has significant debt, and the parties have agreed that it should be treated as having a nil value.  It obviously has some value to the husband and he will retain the business as part of this settlement. 

6. The orders provide that the wife will retain the property already registered in her name.  The husband will retain a property in Suburb M, subject to a payment by him to the wife of $70,000, and in the event that he fails to make that payment there are the usual provisions for a sale of that property. 

7. The settlement is approximately 75/25 in favour of the wife, which takes into account her initial contributions, the fact that the child lives primarily with her and that her income is something less than the husband’s.  In all of the circumstances, I am satisfied that it is just and equitable to make orders and that the orders proposed 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 15 July 2013.

Associate: 

Date:  21 May 2014