Baker and Baker

[2011] FamCA 779

FAMILY COURT OF AUSTRALIA

BAKER & BAKER [2011] FamCA 779

FAMILY LAW – Conditions upon which husband may attend at and inspect home

Family Law Act 1975 (Cth)

APPLICANT: Mr Baker

RESPONDENT: Ms Baker

FILE NUMBER: MLC 1094 of 2010

DATE DELIVERED: 28 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 28 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nicholson

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Mr Mort

SOLICITOR FOR THE RESPONDENT: Lampe Family Lawyers

ORDERS

IT IS ORDERED BY CONSENT:

1. All current parenting orders be discharged.

2. The Wife and the Husband have equal shared parental responsibility for the child of the marriage B born … 2007.

3. The said child live with the Wife.

4. The said child spend time and communicate with the Husband as follows:

   a)each alternate weekend from 4:30 p.m. Friday to 5:00 p.m. Sunday;

   b)on the child's and the Husband's birthday from 9:00 a.m. to 5:00 p.m. on the Saturday or Sunday of the weekend falling nearest to the birthday and on such days to be agreed upon and failing agreement the Sunday immediately after such birthday;

   c)on Father's Day from 9:00 a.m. to 5:00 p.m.;

   IT IS ORDERED BY THE COURT:

   d)from 5:00 p.m. Christmas Day to 5:00 p.m. Boxing Day each year;

   IT IS FURTHER ORDERED BY CONSENT:

   e)on Easter Sunday from 9:00 a.m. to 5:00 p.m.;

   f)until the child commences school for four consecutive days to coincide with each school term vacation and the long summer vacation and upon the said child commencing school for one week in each of the school term vacations and the long summer vacation provided that:

   the Husband has leave from his employment and is able to exercise such time with the child; and
   the Husband provide the Wife with 28 days written notice prior to the holiday period that he is exercising such holiday time;

   g)such other times as may be mutually agreed upon.

   IT IS FURTHER ORDERED BY THE COURT:

5. For the purposes of paragraph 4 herein the Husband collect the said child from and return the said child to the car park, Hungry Jack's in Suburb C as from four (4) weeks from the date of these Orders, and until then changeover shall occur at the Suburb E car park.

   IT IS FURTHER ORDERED BY CONSENT:

6. Notwithstanding anything contained herein the child not spend time with the Husband on:

   a)Mother's Day;

   b)the Wife's birthday;

   c)Good Friday.

7. The parties immediately inform the other of any serious illness or injury sustained by the child whilst in their care and further provide any particulars of any treatment received by the child together with the name and address of the treating provider and/or location at which the child is a patient.

8. The parties each make available to the other any medication prescribed for the child to enable the other party to administer such medication to the child and the other party shall thereafter administer the medication as prescribed or required. The medication shall pass between the parties so as to ensure that it is in the possession of the party with whom the child is living or spending time.

9. That the Wife authorise any school that the said child attends to provide copies of all notices, newsletters, reports and photographs to the Husband at the Husband's expense and permit the Husband to attend school activities to which parents are normally invited.

10. Each party notify the other party with no less than 7 days prior written notice and particulars of any change of residential address or contact telephone number.

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

12. The real property situate at D Street, Suburb E ("the former matrimonial home") be sold with the property to be placed on the market on or before 14 November 2011 ("the sale"), and the proceeds of sale be applied:

    a)first to pay all costs, commissions and expenses of the sale;

    b)secondly the balance to be divided in the proportions of:

    i)     60 per cent thereof to the Husband less the sum of $20,000.00; and

    ii)     40 per cent thereof to the Wife plus the sum of $20,000.00;

    and the Husband's solicitors have the conduct of the conveyancing.

13. The sum of $20,000.00 to be paid to the Wife pursuant to these Orders be attributable to the Wife for lump sum maintenance pursuant to Section 77A of the Family Law Act.

14. Pending the completion of the sale:

    a)the Wife have the sole right to occupy the former matrimonial home and during such right of occupation the Wife pay all rates, taxes and like apportionable outgoings of the former matrimonial home as they fall due;

    b)the parties hold their respective interest in the former matrimonial home upon trust pursuant to these Orders; and

    c)neither party encumber the former matrimonial home without the consent in writing of the other party.

15. Liberty be reserved to either party to apply with respect to the terms and conditions of and the execution of the sale and occupation of the former matrimonial home save that F Real Estate, Suburb E:

    a)be appointed as the selling agent of the former matrimonial home within fourteen (14) days hereof;

    b)be at liberty to recommend any reasonable repairs that have to be carried out with the expenses to be paid out of the net sale proceeds; and

    after discussions with the Husband and the Wife be authorized to:

    c)determine the selling method of the home, be it by auction or private sale;

    d)determine the reserve price for the sale;

    e)determine the terms and conditions of the sale, save that the contract of sale be unconditional.

16. That the Husband be permitted to attend at the former matrimonial home as follows:

    IT IS FURTHER ORDERED BY THE COURT

    a)on the first home open subject to the following:

    i)the Husband to be alone and not accompanied by his partner, friends or family;

    ii)the Husband not to take any photo or video of the property;

    iii)the Husband attend in the presence of the nominated agent or his nominees;

    iv)the Husband be permitted to remain in the property for no longer than half an hour;

    v)the Wife not be present at such time;

    vi)the Husband be restrained from removing any item from the former matrimonial home;

    and the parties request that the said agent make the former matrimonial home available to the Husband for inspection pursuant to this Order 30 minutes prior to the scheduled first home open;

    IT IS FURTHER ORDERED BY CONSENT:

    b)on the day of any auction as may be organised by the selling agents.

17. Upon settlement of the sale the Wife return to the Husband the motor vehicle presently in her possession.

18. For the purposes of these Orders:

    a)the Husband is the member spouse (member number …);

    b)the Wife is the non-member spouse;

    c)"the superannuation fund" is G Super; and

    d)"the Trustee" means the Trustee(s), person(s) or corporation(s) responsible from time to time for the management or investment of the superannuation fund.

19. Paragraphs 20 to 24 inclusive of these Orders are binding on the Trustee.

20. The base amount to be allocated to the Wife out of the Husband's interest in the superannuation fund is $50,000.00 ("the base amount").

21. In accordance with Section 90MT(1)(a) of the Family Law Act 1975 whenever the Trustee makes a splittable payment from the interest held by the Husband in the superannuation fund the Trustee shall pay to the Wife the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there be a corresponding reduction in the entitlement that the Husband would have had but for these Orders.

22. Paragraph 20 has effect from the operative time.

23. The operative time for the purpose of these Orders is the date upon which the Orders are made.

24. Until the happening of any of:

    a)the establishment of a separate account in the name of the Wife in the superannuation fund;

    b)the transfer or "rolling over" into another superannuation fund or superannuation account of the payment split created by paragraph 20 hereof;

    c)the Wife satisfies a condition of release and is paid the payment split which was created by paragraph 20 hereof; or

    d)the Wife executing a waiver of rights within the meaning of Section 90MZA of the Family Law Act in relation to the payment split created by paragraph 20 hereof;

    the Husband be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in the superannuation fund a "not splittable payment" within the meaning of the Regulations 12 to 13 of the Family Law (Superannuation) Regulations 2001.

25. The Husband forthwith notify the Trustee and instruct the Trustee to vary the Death Benefit Nomination in accordance with these Orders.

26. A sealed copy of these Orders be served upon the Trustee.

27. Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:

    a)each party be solely entitled to the exclusion to the other to all property (including choses-in-action) in the possession of such party as at this date. The furniture, personal possessions and chattels in the former matrimonial home are considered to be in the possession of the Wife save for those items as set out in paragraph 79 of the Husband's Affidavit sworn at Melbourne on 13 September 2011 which items the Wife shall make available to the Husband within 35 days as from the date of these Orders with such items to be in proper condition, provided that:

    i)items (t), (u), (v), (w), (x), (y), (dd) and (gg) shall be deemed to be the property of the Wife; and

    ii)the Wife make available to the Husband for copying and return item (m), with such items to be in proper condition;

    b)monies standing to the credit of the parties in any joint bank account are to be divided equally between the parties;

    c)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other save as otherwise provided pursuant to these Orders;

    d)all insurance policies to become the sole property of the beneficiary named therein;

    e)each party be solely liable for and indemnify the other party against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

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

28. That the applications of the Husband and of the Wife filed herein be otherwise dismissed and the proceeding be removed from the docket of Young J.

    IT IS FURTHER ORDERED BY THE COURT

29. That all documents subpoenaed to the Court are to be returned by the Subpoena Clerk at the Melbourne Registry of the Family Court of Australia to the person or organisation from whom they were subpoenaed.

    IT IS CERTIFIED

30. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the Husband and Wife.

    AND THE COURT NOTES:

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

B.For the purposes of the Husband collecting his items, the Wife intends to arrange for a police officer to be present.

IT IS NOTED that publication of this judgment under the pseudonym Baker & Baker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1094 of 2010

Mr Baker

Applicant

And

Ms Baker

Respondent

REASONS FOR JUDGMENT

1. In the matter of Baker I have had presented to me minutes of order in relation to property division.  The parties have agreed that the jointly owned property at D Street, Suburb E is to be sold.  F Real Estate is the appointed real estate firm. 

2. In the minutes of consent order there will be various discretions provided to the estate agent as to the repair and preparation of the property for sale and otherwise as to the terms and conditions of sale.  The property itself is to be sold either by private treaty or auction and it is to be listed for sale on or before 14 November of this year.  In the meantime, the wife and the child of their marriage is to have unrestricted and sole occupancy of the property, as is provided for in paragraph 16 of the minutes of orders which at this stage have been submitted to me but not yet formally orders made.

3. The issue is whether the husband is entitled to visit and inspect the home on the first open for inspection.  By that stage necessary repairs will have taken place and the home will be presented by the wife to the best of her ability, all matters considered and subject to the limitation of expenses on repair and maintenance.  The husband's position is that as a co-owner and not having been to the home for in excess of one and a half years he is entitled to a personal visual inspection of the internal condition of the home.  In contrast, the wife would feel substantially aggrieved by the husband's presence in the home, she would feel it an intrusion and would think that he is there, primarily, to snoop upon her and her lifestyle.  I do balance both matters and I can understand the wife's issues in the context of the various past intervention orders.

4. The most recent intervention order has elapsed and I am unaware of any detailed conflict between the parties since the middle of this year and certainly there are no allegations of the husband's attendance at the home or entering the home since then.  On balance I will allow the husband to attend, but subject to certain conditions and I will ask counsel to incorporate these in the minutes of order when they are presented, albeit that this part of the order can be segmented as it is not by consent and is an order of the Court. 

5. Those conditions will be that, first, he is alone, specifically not with his partner or family or friends.  Secondly there is to be no camera, mobile phone with camera or video taken of the interior of the home.  The point is well made that there may be a video recording available through the real estate agents and it will be online.  Nevertheless, that is not sufficient, in my mind, for the husband and he is entitled to a personal inspection.  I intend that he be there in the presence of the real estate agent or assistants from the firm F Real Estate.  The wife is not to be at the home when he is there.  I make no order about the child, but presumably he will be with the wife.  A half an hour is the maximum time that the husband should have to inspect.

6. I record there is no reason whatsoever for the husband to open any of the personal bedroom or other room drawers of the wife.  He is not there to inspect clothes or items; he is there to inspect the structure.  Ideally, he should attend on the first open inspection day half an hour in advance of the advertised time and a condition of appointing F Real Estate should be that they have members of their firm, one or more, there on that occasion, not so much to supervise the husband, as that is not their duty, but to accompany him around the home with the knowledge, as they will have, that this is a matrimonial dispute and resultant sale and there is a general requirement upon them to maintain some discreet but proper presence.

7. Finally, it must be that the husband takes nothing from the property.  He comes in by himself and leaves by himself without chattels, furniture, items whatsoever.  He is there to inspect, that is what his counsel asked and that is what I think is reasonable.  Finally, it is a one only visit, save that he certainly is to be available if contracts are to be signed in the event of an auction on the day of the auction at or in the vicinity of the property.  Those orders can be engrossed on a court ordered basis and be attached to the orders when they are submitted to my associate.  I will direct that the transcript of these short reasons be transcribed, placed upon the Court file and in the event of any dispute they will be available to counsel and solicitors for both parties.

I certify that the preceding one seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 28 September 2011.

Associate:

Date:              28 September 2011.