Baker and Baker

[2013] FamCA 1121

FAMILY COURT OF AUSTRALIA

BAKER & BAKER [2013] FamCA 1121

FAMILY LAW – CHILDREN – Orders by consent – best interests.

FAMILY LAW – PROPERTY – Orders by consent – just and equitable.

Family Law Act 1975 (Cth)

APPLICANT: Ms Baker

RESPONDENT: Mr Baker

FILE NUMBER: MLC 7227 of 2012

DATE DELIVERED: 3 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 3 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Dr Ingleby

SOLICITOR FOR THE RESPONDENT: Sophie Gioutlou & Co

ORDERS

IT IS ORDERED BY CONSENT PURSUANT TO PART VII OF THE ACT AND BY WAY OF FINAL ORDERS

1. The Husband and Wife have equal shared parental responsibility  for the children:

   a.B born … 2003; and

   b.C born … 2007.

2. That the children live with the Husband and the Wife on a 2 week cycle during school terms as follows:

   a.With the Husband from the conclusion of school on the first Thursday of the school term (or 3:30pm if a non-school day) until the commencement of school the following Monday (4 nights);

   b.With the Husband from the conclusion of school on the second Thursday of the school term (or 3:30pm if a non-school day) until the conclusion of school the next Friday (1 night).

3. a.For one half of the school term holidays at times to be agreed and in the absence of agreement, for the second half of the school term holidays;

   b.For one half of the long summer school holidays, at times to be agreed and in the absence of agreement on a week about basis during this period;

   c.For Easter at times to be agreed and in absence of agreement from 11:00am on Easter Sunday until the commencement of school on the following Monday (or 9:00am if a non-school day);

   d.On Christmas Day at times to be agreed and in absence of agreement from 6:00pm Christmas Day to 6:00pm Boxing Day for December 2014 and from 6.00pm – 8pm on 25 December 2013;

   e.On Father’s Day from 11:00am to 7:00pm; and

   f.Such further and other times as agreed between the parties.

4. That the children’s time with the Husband pursuant to paragraph 3(a) and 3(b) be suspended during the school holiday periods referred to at paragraphs 3(c), and 3(d) and resume at the commencement of the school term in the same cycle as though the school holidays never occurred.

5. Notwithstanding the above, the children are to spend time with the Wife from 11:00am to 7:00pm each Mother’s Day and if such day falls during the children’s time with the Husband.

6. Further to paragraph 3(e), in the absence of agreement, if Easter coincides with the Husband’s weekend with the children pursuant to paragraph 3(b) or 3(c), the children are to spend time with the Wife on Good Friday and Easter Saturday until 11:00am on Sunday Easter.

6A.      Children’s Birthdays:-

Weekdays – the children are to spend time with the parent they are not living with from 3:30pm to 6:00pm.
Weekends – the children are to spend time with the parent they are not living with for 3 hours at times to be agreed.

1. The Husband be permitted to telephone the children at his expense at 7:30pm on any day that the children are living with the Wife, for a reasonable period of time. In the first instance the Husband shall telephone the children on the Wife’s landline and if unsuccessful the Husband shall telephone the children on the Wife’s mobile telephone and the Wife to ensure the telephone is answered by the children, and the same provides apply in the favour of the Wife when the children are with the Husband.

2. The Husband and Wife and their servants and agents be restrained from:

   a.Taking the children to any appointments with any Psychologists, Social Workers and Counsellors;

   b.Harassing, threatening or intimidating the other party;

   c.Communicating with each other save for, text messages relating to the welfare of the said children;

   d.Questioning the children regarding the movements of the other party;

   e.Exposing the children to potential disputes and conflict; and

   f.Denigrating, criticising or belittling the other in the presence or hearing of the children.

3. The parties:

   a.Must ensure that the children’s homework and school bag/s travel with the children at changeover and until further order the school uniforms;

   b.Must assist the children to complete their homework while the children are in their care;

   c.Are permitted to attend any of the children’s school functions including but not limited to parent teacher interviews and sports days; and

   d.Are responsible for responding to any invitation for the children to attend a friend’s party then when that party falls during a period when the children are in their care and ensure that the children attend with a gift.

4. That the children live with the Husband when the Wife is overseas without the children.

5. That each party notify the other forthwith of any serious illness or injury suffered by the child, while the children are in their care and also provide the other party details of any medical practitioner or hospital that may provide treatment to the children from time to time.

NOTATION

A.     The parties agree that when they are both present at extracurricular activities of the children, they will not approach each other and not intrude on the relationship between the parent with whom the child/ren are living at the relevant time, or any group in which the parent is participating.

IT IS ORDERED BY CONSENT AND BY WAY OF FINAL ORDERS

1. That the Wife pay to the Husband by way of property settlement the sum of $740,000 on or before 4pm Monday 3 March 2014 (“the payment”).

2. That contemporaneously with his receipt of the payment, the Husband transfer to the Wife all his interest in the properties at 1 and 2 D Street, Suburb E and the Wife discharge the Husband from all liability in relation to any mortgage on the said properties and discharge the Line of Credit for her vehicle.

3. That the parties sign such documents as are required (if any) to transfer the vehicles to ensure the Wife retains her motor vehicle, the Husband retains his 4WD and the Wife (or her nominee) retain the sedan).

4. That the parties otherwise retain the assets and resources in their respective possessions as at the date of these Orders. Subject to 16 below, the Wife retains the proceeds of 1 D Street.

5. On the sale of 1 D Street, which is to be conducted by the Wife, the capital gain will be allocated between the parties in the proportions of 60 per cent to the Wife and 40 per cent to the Husband (in the event that the property is sold by 31 December 2014), Husband to sign any document reasonably required to secure completion of the sale.

NOTATION

A.     The parties intend these Orders shall as far as practicable finally determine their financial relationship and avoid further proceedings between them.

B.     The Wife is to pay all outstanding school fees for the monies retained by her and C will attend a state school next year.

C.     The Wife concedes that the Husband does not presently have the capacity to pay private school fees.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and the matter be removed from the list of pending 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 THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonable required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baker & Baker 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 7227 of 2012

Ms Baker

Applicant

And

Mr Baker

Respondent

REASONS

1. This matter was listed for final hearing before me commencing on 2 December 2013.  It involved both parenting and financial issues.  I have had the opportunity to read the parties’ trial affidavits and, in relation to the parenting issues, the report prepared by Ms F.  Both the mother and her father gave oral evidence and have been cross-examined.

2. The parties in this case have two children, who are aged 10 and six, respectively.  The parties were generally in agreement with respect to the arrangements for the children’s care, save and except as to whether the children should spend four or five nights per fortnight with the father.  The parties have now reached agreement with respect to those arrangements and that agreement takes into account the recommendations made by Ms F.  I am satisfied that the orders they propose are in the children’s best interests and I will make those orders in due course. 

3. The issues with respect to property settlement included a dispute as to the parties’ initial contributions, allegations of moneys advanced by the wife’s father and how that should be treated, and the weight to be given to the various s 75(2) factors, in particular, what was submitted by the husband to be a significant discrepancy in their respective income earning capacity. 

4. The parties have had the assistance of experienced counsel and instructing solicitors, and they have now reached agreement with respect to property settlement, and both submit that I make the orders they propose by consent. 

5. The Court must be satisfied that it is just and equitable to make orders for property settlement and that the orders that are proposed to be made are themselves just and equitable.  It is submitted that the proposed orders represent a 60/40 split in the wife’s favour, which takes into account, on her side of the ledger, what she says are her greater contributions primarily made up of what were contributions made on her behalf by her parents, and also take into account the various s 75(2) factors. Whilst there is, as in many cases, not total agreement as to what should be included in the pool of assets and the value of those assets, the parties have been able to compromise the matter. 

6. The parties are no longer living in a marital relationship and no longer have the common use of the property they acquired during that marital relationship.  The arrangements that they made with respect to their property have been brought to an end by the end of their relationship.  Those arrangements, although they may have been appropriate during their marriage, are no longer so.

7. I am satisfied that in all of the circumstances it is just and equitable to make orders for property settlement.  I am also satisfied that the orders they propose are just and equitable in all of the circumstances of this case.  I must also be and I am satisfied that as far as is practicable these orders will bring to an end their financial relationship.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 3 December 2013.

Associate:

Date:  21 May 2014