Bertrand and Bertrand & Anor
[2020] FamCA 1051
•10 December 2020
FAMILY COURT OF AUSTRALIA
| BERTRAND & BERTRAND AND ANOR | [2020] FamCA 1051 |
| FAMILY LAW – PROPERTY – Interim distribution – Where the evidence has been concluded – Where the parties agree to the sale of a property and the distribution of the proceeds of sale – Where the agreement protects the interests of the parties and the second respondent – Orders. FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the husband and the wife agree that by way of interim spousal maintenance the husband will transfer shares to the wife – Where the second respondent opposes the agreed orders – Where the focus of the second respondent is to secure payment of the husband’s outstanding liability – Where the second respondent considers the transfer of shares may reduce the balance of the property pool - Whether it is proper to make the orders sought – Where the parties agree that pending a final determination the wife is unable to adequately support herself – Where the position of the second respondent will not be prejudiced – Orders. FAMILY LAW – CHILD SUPPORT – Application for departure – Where the wife seeks a departure order – Where the wife’s substantive application seeks an order to relocate the children from Sydney to Melbourne – Where the travel costs which would be incurred if relocation is permitted have not been properly canvassed – Where the travel costs would be a relevant factor in respect of child support – Where final parenting matters have not been determined – Where it would be premature to consider a departure application. FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where the mother seeks that the children spend Christmas with her –Where the parties and children had historically spent Christmas with the wife’s family each alternate year – Where the children spent last Christmas with the father – Where the wife expected that the children would spend Christmas with her family in Adelaide this year – Where the wife seeks that the children spend time with the husband before Christmas and in the new year – Where the orders the wife seeks would not adversely impact upon the children’s relationship with the husband – Orders. |
| Child Support (Assessment) Act 1989 (Cth) s 124 Family Law Act 1975 (Cth) ss 60CC, 72, 75(2), 79 |
| Hall & Hall (2016) 257 CLR 490 Maroney & Maroney [2009] FamCAFC 45 |
| APPLICANT: | Ms Bertrand |
| 1ST RESPONDENT: | Mr Bertrand |
| 2ND RESPONDENT: | Commissioner of Taxation |
| FILE NUMBER: | SYC | 2440 | of | 2019 |
| DATE DELIVERED: | 10 December 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 13 & 20 November 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton SC |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Jackson |
| SOLICITOR FOR THE 1ST RESPONDENT: | Sharah & Associates Solicitors and Conveyancers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Kasep |
| SOLICITOR FOR THE 2ND RESPONDENT: | Craddock Murray Neumann Lawyers |
Orders
Sale of Property
That Mr Bertrand (“the husband”) and Ms Bertrand (“the wife”) forthwith do all acts and things and sign all documents necessary to effect a sale of the property at J Street, Suburb C in the State of New South Wales ("the home") for the best price reasonably obtainable as follows:
(a)list the home for sale by not later than 1 February 2020 with L Property Agents and K Property Agents ("the agents"), with such sale to occur by way of public auction to occur not earlier than 4 weeks from the date the home is listed for sale;
(b)the reserve price for the purpose of such auction shall be the price mutually agreed upon between the husband and the wife in writing and, in the absence of agreement 2 days prior to the auction date, the parties will adopt the price set out in the agency agreement signed by the parties, subject to any updating advice of the agents in this respect;
(c)the husband and the wife shall each cooperate in every way with the agents including but not limited to:
(i)making all necessary keys available to the agents;
(ii)allowing inspection of the home at all reasonable times requested by the agents;
(iii)doing or saying nothing to hinder or prevent a sale being effected;
(iv)ensuring the home is in a neat and clean condition at the time of inspection by the agents and prospective purchasers; and
(v)signing all documents requested by the agents in relation to the listing of the home for sale, except a contract for sale which has not been authorised by the parties' solicitors.
(d)in the event the bidding at the auction does not reach the reserve price, the husband and the wife, or such of them as attend the auction, may negotiate with the highest bidders and any other interested person and effect a sale of the home at a price which is not more than 5 per cent below the reserve price, or at such other price as the husband and the wife agree upon in writing;
(e)if the home remains unsold, the husband and the wife are to do all acts and things and sign all documents necessary to immediately re-list the home for sale by private treaty at the reserve price (or such other price as is agreed between the husband and the wife in writing) with the agents, or either of them as agreed;
(f)the husband and the wife shall instruct Mr M to have the conduct of the sale or such other solicitor or conveyancer that the husband and wife agree upon in writing within 7 days of the date of the making of these Orders;
(g)the husband and the wife shall each execute a contract for sale in the form prepared by the solicitor having the conduct of the sale at the sale price;
(h)neither the husband nor the wife may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the home or to any commission.
At settlement of sale of the home, the proceeds of sale be paid in the following manner and priority:
(a)all costs and expenses of sale including legal costs and disbursements, agents' commission, advertising expenses and auction expenses;
(b)the amounts required to pay any outstanding municipal and water rates relevant to the home, as well as other usual and agreed conveyancing adjustments;
(c)the sum required to pay out and discharge the mortgage secured against the home, including any penalty interest or fees levied in respect of same;
(d)to the wife, the sum of $2,797 representing the costs paid by the wife in readying the home for sale and in respect of which receipts have already been provided to the husband;
(e)to the wife, in reimbursement of any further or additional costs incurred by the wife in readying the home for sale, limited to costs incurred by the wife on the written advice of the agents, with the wife to provide to the husband copies of all receipts and/or invoices evidencing such costs not later than 7 days prior to the date of settlement, with such sum not to exceed $10,000;
(f)the balance thereafter to be paid into two controlled moneys accounts to be established by the wife's solicitors as follows:
(i)one account holding 1 per cent in the husband's name; and
(ii)another account holding 99 per cent in the wife's name;
pending further order.
The husband and the Commissioner of Taxation be provided with a copy of the bank statements for the controlled moneys accounts upon establishment and re-investment within a reasonable time of the receipt of same.
Transfer of Shares
That as and by way of interim spousal maintenance, the husband within 14 days of the date of these Orders, do all acts and things to cause 704 G Bank shares to be transferred to the wife, with the wife to thereafter be at liberty to dispose of such shares (whether in one tranche or otherwise) and to be responsible for the payment of any taxation liability assessed in the wife's name as a consequence of such disposal(s).
That save and except for compliance with Order (4) herein, the husband be restrained until further order from selling, transferring, encumbering, gifting or in any way disposing of the G Bank shares currently held in his name.
Parenting
That the children spend time with the husband during the school holiday period at the conclusion of Term 4, 2020 as follows:
(a)from 9.00 am on 13 December 2020 until 9.00 am on 22 December 2020; and
(b) from 9.00 am on 10 January 2021 until 9.00 am on 19 January 2021.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bertrand & Bertrand has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: SYC 2440 of 2019
| Ms Bertrand |
Applicant
And
| Mr Bertrand |
1st Respondent
And
Commissioner of Taxation
2nd Respondent
REASONS FOR JUDGMENT
Introduction
Ms Bertrand (“the wife”) and Mr Bertrand (“the husband”) are in dispute as to matters of property settlement and the future parenting arrangements for W born … 2006, X born … 2008, Y born … 2010 and Z born … 2012 (collectively “the children”).
By orders made 28 April 2020 the Commissioner of Taxation (“the Commissioner”) was given leave to intervene in the proceedings.
The final hearing commenced on 9 November 2020. After consideration as to the utility of the continued involvement of the Independent Children’s Lawyer (“ICL”), an order was made discharging the appointment of the ICL and reserving the ICL’s costs to the conclusion of the proceedings.
At the conclusion of the evidence on 13 November 2020, the parties tendered a document titled “Proposed Minute of Interim Orders” (“the proposed minute”). The document sought to deal with the following matters on an interim basis:-
(1)the sale of the property at J Street, Suburb C in the State of New South Wales (“the home”);
(2)the transfer of 704 G Bank shares to the wife;
(3)the child support to be paid by the husband for the children; and
(4)the arrangements for the children to spend time with the parties over the Christmas holiday period.
The proceedings were further listed for hearing on 20 November 2020 to consider the following:-
(1)further evidence as to the travel and accommodation costs between Sydney and Melbourne;
(2)further orders that deal with the method and manner by which the children’s school fees and curricular activities will be paid; and
(3)orders to be made, if any, in respect of the children spending time with the husband on Christmas Day and Boxing Day.
Sale of property
The home is held by the parties as tenants in common. The wife holds a 99 per cent interest with the husband holding a 1 per cent interest. The parties generally agree that the home has a notional value of in excess of $5 million.
By reference to the joint balance sheet (Exhibit “20”) the parties agree that there is a bank loan secured by mortgage over the home outstanding in the sum of about $3,150,000.
In addition, the Commissioner contends that as at 12 August 2020 the husband’s total taxation liabilities were in the sum of $1,672,629.07 and seeks that in the consideration of any final orders for property settlement, provision is made for the payment of the husband’s taxation liability.
The husband does not oppose the orders sought by the Commissioner and it is his position that the taxation debt be paid from the net balance of the proceeds of sale of the home.
The wife is opposed to the orders sought by the Commissioner and argues that the husband should bear sole responsibility for his taxation debt and that it should not be brought to account as a liability of the parties.
To date, whilst the parties agree that it is not possible for either of them to retain the home, they have not been able to agree the method and manner by which the home is to be sold.
The proposed minute now represents an agreed position between the parties as to the sale of the home. I propose to make orders in terms of the parties’ agreement, noting that the balance of the net proceeds of sale will be paid into two controlled money accounts as to 1 per cent in the husband’s name and 99 per cent in the wife’s name pending further order.
I consider that the agreement of the parties properly protects the interest of each of them and the Commissioner.
Transfer of shares
The husband currently holds 3,460 G Bank shares. Based upon the wife’s notional share price of $132.42 per share as at 4 November 2020, the wife considers that the shares have a total value of $458,173.20 whereas the husband adopts an after tax amount of $234,873.
The wife seeks that there be a sale of some of the G Bank shares to provide her with funds such that she may meet her living expenses pending the finalisation of the proceedings.
The parties have agreed that by way of interim spousal maintenance the husband will transfer 704 G Bank shares to the wife who will be at liberty to dispose of them provided that she also is responsible for any taxation liability consequent upon their sale.
The proposed order sought by the parties is opposed by the Commissioner on the basis that it has the potential to further reduce the balance of the pool of property that may be available to satisfy the outstanding taxation liability.
That it is proper to make the order as sought by the parties.
In the recent case of Hall & Hall (2016) 257 CLR 490, the High Court set out the appropriate approach in considering an application for interim spousal maintenance as follows:-
[3]… The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That subsection provides that “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)”.
[4]The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That subsection provides that “[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part”.
[5]A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters (s 75(1)). Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment”. They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
In the decision of Maroney & Maroney [2009] FamCAFC 45 Coleman J said:-
56.… Once a party … establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.
The parties have agreed that pending a final determination the wife is not able to support herself adequately. It is also conceded that some of the net proceeds of the sale of the G Bank shares will be used by the wife to pay expenses in respect of the children.
The primary focus of the Commissioner is to secure the payment of the husband’s outstanding taxation liability from the net proceeds of the sale of the home.
The value of the 704 shares agreed to be transferred to the wife hold a modest value of about $93,000. I do not consider that in making the order sought by the parties the position of the Commissioner will be prejudiced.
In all the circumstances, I consider it appropriate to make the order sought by the parties noting that they have further agreed that the husband will be restrained from selling, transferring or disposing of the balance of the G Bank shares currently held in his name.
Child support
The parties are not able to agree child support. The wife seeks a departure from the Administrative Assessment of Child Support such that, in addition to the periodic child support assessed to be paid by the husband, pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth) the husband also pay all curricular and extra-curricular activities for the children. At present that sum would be in excess of $130,000 per annum.
The wife’s application is that she be permitted to relocate the residence of the children from Sydney to Melbourne. The husband opposes the orders sought by the wife.
I considered that at the conclusion of the substantive evidence an issue not properly canvassed was the likely travel costs that would be incurred by the parties, but principally, the husband if the children’s relocation was permitted.
The potential travel costs are not agreed between the parties, but it is uncontroversial that they are significant.
The anticipated travel costs have relevance not just as part of the Court considering the separate proposals of the parties, but if relocation is allowed then the anticipated travel costs would be a relevant factor to be considered in respect of child support upon a departure application.
To consider a departure from the Administrative Assessment in circumstances where the parties are not agreed as to the parenting arrangements would be premature.
Christmas school holiday arrangements
The wife seeks that the children spend time with the husband during the Christmas school holiday period at the conclusion of Term 4 as follows:-
·From 9.00 am on 13 December 2020 until 9.00 am on 22 December 2020; and
·From 9.00 am on 10 January 2021 until 9.00 am on 19 January 2021.
The wife relies upon her affidavit filed 17 November 2020. She refers to orders made on 24 July 2019 which provided for the children to spend time with the husband from 9.00 am on Christmas Eve until 1.00 pm on 25 December 2019.
The wife’s family live in Adelaide. It is not contested that since 2002 the parties and the children attended the wife’s family’s Christmas in Adelaide in each alternate year.
It was the wife’s expectation, that given the children spent Christmas with the husband in 2019 that the historical arrangement would continue and that she and the children would spend Christmas in Adelaide, with her family in 2020.
The husband opposes the wife’s application.
I accept the matters set out in paragraph 9 of the wife’s affidavit which details the wife’s family’s Christmas plans.
It is reasonable to consider that the children would have an expectation of spending time with the wife’s extended family in Adelaide.
The proposal of the wife is not unreasonable, nor is the husband’s opposition.
I do not consider that the resolution of the wife’s application would suggest that there is a contest between the children spending time with the wife’s family as opposed to their father. That is a binary consideration which ignores the range of issues that I am obliged to consider in terms of the primary and additional considerations pursuant to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
The wife’s proposal does not adversely impact upon the children’s relationship with the husband. The children would spend time with him from 13 December to 22 December 2020 and then from 10 January to 19 January 2021.
I am obliged to consider the resolution of the dispute from the perspective of the children.
In the circumstances, I consider that the parties were of the view that it was important for the children to retain a connection with each of the parties’ extended families. The wife’s application seeks to do no more than maintain that position.
Conclusion
I propose to make orders in terms of the wife’s application.
I make orders as appear at the commencement of these reasons.
I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 December 2020.
Associate:
Date: 10 December 2020
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