Baden and Baden and Anor

[2013] FamCA 1087

FAMILY COURT OF AUSTRALIA

BADEN & BADEN & ANOR [2013] FamCA 1087

FAMILY LAW – PARENTING – Wife will have sole parental responsibility – Husband's time with the Children reserved.

FAMILY LAW – PROPERTY

APPLICANT: Mr Baden

1^st RESPONDENT: Ms Baden

2^nd RESPONDENT: Mr H

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8322 of 2013

DATE DELIVERED: 18 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE 1^ST RESPONDENT: Mr Ross

SOLICITOR FOR THE 1^ST RESPONDENT: Blackwood Family Lawyers

COUNSEL FOR THE 2^ND RESPONDENT: Mr Constantinou

SOLICITOR FOR THE 2^ND RESPONDENT: Schetzer Constantinou

Orders

BY CONSENT IT IS ORDERED:

1. The Wife will have sole parental responsibility for the children of the marriage: B born … 2004 ("B") and C born … 2007 ("C") (collectively called the "Children").

2. The Children shall live with the Wife.

3. The Husband's time with the Children shall be reserved.

4. The Husband and the Wife will be at liberty to serve a sealed copy of these Orders on the schools attended by each of the Children from time to time.

5. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.

6. For the purposes of these Orders, the following words and phrases shall have the following meanings:

   (a)"D Street" means the real property located at D Street, Suburb E, Victoria ...

   (b)"D Street Mortgage" means the mortgage loan with the ANZ secured by D Street.

   (c)"SUV" means the 2011 SUV registered.

   (d)"SUV Finance" means the loan from F Finance secured by the SUV.

   (e)"Wife's Savings" means the savings of the wife held in the ANZ Bank.

7. The Husband and the Wife shall do all such things as are necessary to effect the following things within 30 days of the date of these Orders:

   (a)The Husband shall transfer his interest in D Street to the Wife at the expense of the Wife.

   (b)The Wife shall refinance the D Street Mortgage so as to discharge any liability the Husband may have for that loan.

   (c)The Husband shall withdraw the caveat he has lodged on the title of the real property located at G Street, Suburb E, Victoria … at the expense of the Husband.

   (d)The Wife will hold her interest in the American motor vehicle on trust for B and C until they are each 18 years of age.

   (e)The Husband will transfer his interest in the SUV to the Wife at the expense of the Wife.

   (f)The Wife will refinance the SUV Finance so as to discharge any liability the Husband may have for that debt.

8. The Wife will pay the monthly car loan payments for the SUV Finance. The Wife is at liberty to sell the SUV and apply the proceeds of sale of the SUV as follows:

   (a)Firstly, to pay out the SUV Finance.

   (b)Secondly, to pay the balance (if any) to the Wife.

9. The Wife shall retain the following assets to the exclusion of the Husband and the Husband shall have no further interest in those assets, either at law or in equity:

   (a)D Street.

   (b)The Wife's Savings.

   (c)The SUV and any proceeds of the sale of that car.

   (d)The Wife's superannuation entitlements, including her entitlements in the H Superannuation Fund.

   (e)J Pty Ltd.

   (f)I Pty Ltd.

   (g)H Investments Pty Ltd.

   (h)The furniture and chattels in the former matrimonial home save and except for those items in paragraph 12(g) hereof.

10. The Husband shall retain the following assets to the exclusion of the Wife and the Wife shall have no further interest in those assets, either at law or in equity.

    (a)The Husband's superannuation entitlements.

    (b)The 2 motorcycles.

11. The Second Respondent will retain for his own use and benefit all assets currently in his name, in which he has an interest, or in his possession to the exclusion of the husband and the husband relinquish any right, title and interest to those assets either at law or in equity.

12. 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 shall 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 subject to sub-paragraph (g) hereof.

    (b)Monies standing to the credit of the parties in any joint bank account shall be paid to the wife.

    (c)Each party shall forego any claims they may have to any superannuation, long service leave, redundancy, retirement and like benefits belonging to or earned by the other.

    (d)Each party shall forego any claims they may have to any monies residing in individual bank accounts belonging to the other.

    (e)Insurance policies shall remain the sole property of the owner named thereon.

    (f)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.

    (g)Wife to make available for collection by the husband or his agent the “box” in the spare room containing photos throughout the marriage (including wedding album) and also specially made sugar ornaments for the parties’ wedding with their names on them.

    (h)Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

13. All extant applications are otherwise and hereby dismissed.

AND THE COURT NOTES:

A.Pursuant to section 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 avoid further proceedings between them.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baden & Baden and Anor 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 8322 of 2013

Mr Baden

Applicant

And

Ms Baden

1^st Respondent

Mr H

2^nd Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. I have before me today an application for the making of consent orders which will finalise both parenting matters and financial matters between the parties. 

3. The husband does not appear today.  I am informed by counsel for the wife that the husband is currently incarcerated, facing serious criminal charges.  I have been provided with a letter forwarded by the wife’s solicitors to the husband, informing him that they propose to seek orders by consent today.  I propose that that letter dated 13 December 2013 will remain on the court file as evidence of the communication.  I will mark that with the letter A as an exhibit to the file.

4. The orders have been signed by all parties.  They provide for the parenting arrangements in relation to the parties’ two children, B, who is aged nine years, and C, who is aged six years.  The orders provide that those children continue to live with the wife and that she have sole parental responsibility for their care.

5. Having had the opportunity of hearing submissions from the solicitor for the wife, as to the background of the matter, in taking into account that the husband has consented to the orders and that it would appear he is facing some extended period of incarceration, I am satisfied that the orders are appropriate and in the children’s best interests.

ORDERS DELIVERED

1. As to the financial matters, I am informed by counsel that this is an approximately 10-year relationship.  The pool of assets is valued at some $39,000 and, in addition, there are some motorcycles which are owned by the husband.  I am informed that in terms of contributions, the weight of contributions falls heavily in favour of the wife having regard to contributions made on her behalf by her father.  As to section 75(2) matters, the wife is in employment, earning an income of approximately $64,000 per annum.  The husband is currently not working.  There is no child support being paid in respect of the two young children.

2. Having regard to all of those factors, the orders proposed which essentially provide that most of the asset pool will remain with the wife, the husband to retain his motorcycles is appropriate.  I consider the proposed orders 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 Johns delivered on 18 December 2013.

Associate:

Date:  18 December 2013