FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marlon & Calkins [2024] FedCFamC2F 307
File number(s): MLC 9641 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 14 March 2024 Catchwords: FAMILY LAW – parenting and property– final hearing – parental responsibility – sole parental responsibility for medical decisions only – shared care versus nine/five arrangement – school holiday time – special needs of children – insight into needs – family violence – insight into parental behaviour – high parental conflict – where court disagrees with recommendations of the Family Report writer – add backs – legal fees – loans – contributions – inheritance – s 75(2)(o) – failure to disclose – increased legal fees due to conduct of a party – dissipation of assets post-separation – lump sum child support – chattels Legislation: Child Support (Assessment) Act 1989 (Cth) ss 123, 123A, 124
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D, 65DAA, 75, 79
Income Tax Assessment Act 1997 (Cth) Part 3-1
Family Law (Superannuation) Regulations 2001 (Cth) Part 6
Cases cited: Aleksovski & Aleksovski (1996) FLC 92-705
Bevan & Bevan [2013] FamCAFC 116
Candle & Falkner [2021] FedCFamC1A 102
Clauson & Clauson (1995) FLC 92-595
D & D [2003] FamCA 473
Dickons & Dickons [2012] FamCAFC 154
Grella & Jamieson [2017] FamCAFC 21
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Holland & Holland [2017] FamCAFC 166
Lee Steere & Lee Steere [1985] FamCA 57
Mallet v Mallet (1984) 156 CLR 605
Masson v Parsons [2019] HCA 21
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Omacini & Omacini [2005] FamCA 195
Rosati v Rosati (1998) FLC 92 804
Division: Division 2 Family Law Number of paragraphs: 180 Date of last submission/s: 15 December 2023 Date of hearing: 11 – 15 December 2023 Place: Melbourne Counsel for the Applicant: Mr Stanley Solicitor for the Applicant: Kennedy Partners Counsel for the Respondent: Mr Whitchurch Solicitor for the Respondent: Barbayannis Lawyers Counsel for the Independent Children's Lawyer: Ms Treyvaud Solicitor for the Independent Children's Lawyer: Victoria Legal Aid
Table of Corrections 13 September 2024 Orders 23.4.4.1, 23.4.4.2.1, 28, 31.2.1 and 32.1 have been amended pursuant to r 10.13(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“r 10.13(e)”) to reflect the Court’s intention ORDERS
MLC 9641 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MARLON
Applicant
AND: MR CALKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
14 MARCH 2024
Amended pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Cth on 13 September 2024
THE COURT ORDERS THAT:
1.All extant parenting orders be discharged.
PARENTING
Parental responsibility
2.The Husband and Wife have equal shared parental responsibility for the children, X born in 2012 and Y born in 2014 (“the children”), save that…
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- Case
- [2024] FedCFamC2F 307
- Decision Date
CaseChat Overview and Summary
The court, after reviewing the evidence and submissions, decided to deviate from the Family Report writer's recommendations, primarily due to the high level of parental conflict and the special needs of the children. The court granted equal shared parental responsibility to both parents but assigned sole parental responsibility for medical decisions to the wife, with specific conditions to ensure the husband's involvement. For time-sharing arrangements, the court opted for an alternating weekly schedule during school terms and a detailed plan for school holidays and special occasions, aiming to provide stability and predictability for the children. The property division was addressed with specific orders for the transfer of real estate, the discharge of mortgages, and the application of the proceeds from the sale of certain properties. The court also addressed the superannuation split, ordering a base amount to be allocated to the wife from the husband's superannuation fund. The court further ordered the husband to pay a lump sum for child support and directed both parties to cover their own legal costs, with an add-back for the husband's legal fees due to his conduct. The court's decisions were based on a detailed assessment of the parties' financial situations, the needs of the children, and the overall welfare of the family.
Orders
Orders of the court
MLC 9641 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS MARLON
Applicant
AND:
MR CALKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
14 MARCH 2024
Amended pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Cth on 13 September 2024
THE COURT ORDERS THAT:
1. All extant parenting orders be discharged.
PARENTING
Parental responsibility
2. The Husband and Wife have equal shared parental responsibility for the children, X born in 2012 and Y born in 2014 (“the children”), save that the Wife have sole parental responsibility for medical decisions provided that:
2.1 The Wife consult with the Husband with respect to medical decisions and seek the Husband’s input and views; and
2.2 The Wife provide the Husband seven days prior notice of all medical/allied health appointments for the children and confirm that she will be in attendance; and
2.3 The Wife to authorise all treaters to liaise with the Husband regarding the children’s progress and treatment.
Spend time arrangements
3. The children live with the Wife.
4. The children spend time with the Husband as follows:
4.1 During school terms in each alternate week from the conclusion of school (or 3:30 pm if a non-school day) on Friday until the commencement of school (or 9:00 am if a non-school day) on Wednesday, with the first occasion of time to commence on the first Friday the children would ordinarily spend time with the Husband pursuant to order 2.2 of the orders made by consent on 19 July 2023.
4.2 During school holidays:
4.2.1 For the second half of the Term 1, 2 and 3 school term holidays in 2024 and alternating yearly thereafter;
4.2.2 For the first half of the Term 1, 2 and 3 school term holidays in 2025 and alternating yearly thereafter;
4.3 During the long summer holidays:
4.3.1 For one half, in default of agreement the second half in 2024/2025 and the first half in 2025/2026.
4.4 For special occasions:
4.4.1 On Christmas Day 2024 and each alternate year from 4:00 pm until 8:00 pm;
4.4.2 On each of the children’s birthdays, in the event the children are not otherwise spending time with the husband:
4.4.2.1 If both children are not attending school, from 4:00 pm until 7:30 pm; or
4.4.2.2 If either child is attending school, from the conclusion of school until 6:30 pm.
4.4.3 On the Husband’s birthday:
4.4.3.1 If both children are not attending school, from 12:00 pm until 6:00 pm; or
4.4.3.2 If either child is attending school, from the conclusion of school until 7:30 pm.
4.4.4 On the Father’s Day weekend from 4:00 pm on Saturday until the commencement of school on Monday.
4.5 At such further and other times as may be agreed between the parties in writing.
5. The children’s time with the Husband be suspended so that they spend time with the Wife:
5.1 During school holidays:
5.1.1 For the first half of the Term 1, 2 and 3 school term holidays in 2024 and alternating yearly thereafter;
5.1.2 For the second half of the Term 1, 2 and 3 school term holidays in 2025 and alternating yearly thereafter.
5.2 During the long summer holidays:
5.2.1 For one half of the school holidays, but in default of agreement the first half in 2024/2025 and the second half in 2025/2026.
5.3 For special occasions:
5.3.1 From 4:00 pm Christmas Eve 2025 until 4:00 pm Christmas Day 2025 and each alternate year.
5.2.1 On each of the children’s birthdays, in the event the children are not otherwise in her care:
5.2.1.1 If both children are not attending school, from 4:00 pm until 7:30 pm; or
5.2.1.2 If either child is attending school, from the conclusion of school until 6:30 pm.
5.2.2 On the Wife’s birthday:
5.2.2.1 If both children are not attending school, from 12:00 pm until 6:00 pm; or
5.2.2.2 If either child is attending school, from the conclusion of school until 7:30 pm.
5.2.3 On the Mother’s Day weekend from 4:00 pm on Saturday until the commencement of school on Monday.
5.2.4 On Good Friday from 10:00 am until 6:00 pm.
6 For the purpose of calculating each party’s time with the children:
6.1 In the event the school holidays consist of an odd number of nights, the parties alternate having one night in excess of half of the school holiday period, with the Wife to have the first extra night.
6.2 The school holiday period is deemed to:
6.2.1 Commence at the conclusion of school on the last day of term on which Y is required to attend school;
6.2.2 Conclude at the commencement of school on the first day of the term on which Y is required to attend school.
6.3 The long summer holiday period is deemed to:
6.3.1 Commence at 4:00 pm (or if a school day, at 3:30 pm) on 17 December each year; and
6.3.2 Conclude at the commencement of school on the first day of the term on which Y is required to attend school.
6.4 Changeover during the school term holidays occur at 4:00 pm.
6.5 At the conclusion of the school holiday periods, the school term arrangements continue in the same cycle as if the holiday period had not occurred.
7 In the event that the children are in the Wife's care on the following occasions, they spend time with the Husband as follows:
7.1 From 4:00 pm until 8:00 pm on Christmas Day each year.
8 In the event that the children are in the Husband's care on the following occasions, they spend time with the Wife as follows:
8.1 From 4:00 pm Christmas Eve until 4:00 pm Christmas Day each year.
9 Where changeovers do not occur at the children’s respective schools:
9.1 The Wife or her nominee collect the children from the Husband’s residence at the commencement of her time;
9.2 The Husband or his nominee collect the children from the Wife’s residence at the commencement of his time.
10 The Husband and Wife communicate with respect to the children using the Our Family Wizard App (or such other app as may be agreed in writing between them), with the costs of any such subscription to be shared equally between them.
Medical
11 The Husband and Wife comply with all directions and recommendations made by each of the children’s respective paediatricians and any other agreed treating medical or allied health professionals, including but not limited to:
11.1 Administering any prescribed medication including for the purpose of treating their ADHD; and
11.2 Taking the child to medical appointments.
12 The Husband and Wife provide each other with all reports and information regarding the children’s medical and allied health appointments and education.
13 The Husband be restrained from attending any of the children’s medical or allied health appointments at which the Wife is to be in attendance.
14 The Wife continue to attend upon Ms B for such period as recommended by Ms B.
15 The Husband continue to attend upon Ms C for therapy for such period as recommended by the psychologist.
Travel
16 The Husband and Wife sign all documents and do all acts and things required to apply for and renew Australian Passports for the children within seven days of receiving a written request from the other parent.
17 The Husband and Wife be permitted to travel internationally with the children, provided that they comply with the following:
17.1 Prior to the international travel, the travelling parent provide to the non-travelling parent the travel dates and details of destinations with such notice be provided no less than 30 days prior, as long as the international travel occurs only during the travelling parent’s time with the children and no less than 90 days prior, in the event the international travel occurs during the non-travelling parent’s time with the children;
17.2 In the event the international travel occurs during the non-travelling parent’s time with the children, the Husband and Wife agree on make-up periods prior to the travel;
17.3 The proposed travel not occur for more than three days during school terms unless agreed and approved by the children’s respective schools;
17.4 The proposed travel be for no longer than 21 days on each occasion.
18 In the event of overseas travel, and providing the travelling parent has complied with the preceding, the non-travelling parent provide to the travelling parent, the passport in their possession and the passport be returned by the travelling parent to the non-travelling parent within seven days of returning to Australia.
19 The Husband be entitled to retain X’s passport and the Wife be permitted to retain Y’s passport.
PROPERTY
20 Within 120 days of the date of these orders (the due date):
20.1 The Wife transfer to the Husband all of her right, title and interest in the property at D Street, Suburb E in the State of Victoria being the property more particularly described in Certificate of Title Volume … Folio … (Suburb E), with the transfer to be at the expense of the husband save that the Wife be solely responsible for her own legal costs and PEXA fees with respect to the transfer (the Suburb E transfer);
20.2 The Husband transfer to the Wife all of his right, title and interest in the properties at:
20.2.1 F Street, Suburb G in the State of Victoria being the property more properly described in Certificate of Title Volume … Folio … (F Street),
20.2.2 H Street, Suburb G in the State of Victoria being the property more properly described in Certificate of Title Volume … Folio … (1 H Street).
with the transfers to be at the expense of the Wife save that the Husband be solely responsible for his own legal costs and PEXA fees with respect to the transfers (the wife’s transfers); and
20.3 The Husband and Wife do all acts and things and sign all such documents as may be required to discharge:
20.3.1 The mortgage to J Bank Registered Number … secured over the title of Suburb E (the Suburb E mortgage), with the discharge to be at the Husband’s sole expense so as to release the Wife from all liability thereunder.
20.3.2 The mortgage to Westpac Banking Corporation Registered Number … secured over the tile of F Street (the F Street mortgage), with the discharge to be at the Wife’s sole expense so as to release the Husband from all liability thereunder.
20.4 The Husband provide to the Wife such source documents as are in his possession evidencing his ‘cost base’, for the purposes of Part 3-1 of the Income Tax Assessment Act 1997 (Cth), of his interest in 1 H Street; and
20.5 The Husband do all acts and things and sign all such documents as may be required to assign to the Wife, at her expense, the lease with respect to 1 H Street and to transfer to the Wife, the bond for 1 H Street (if any).
21 Upon settlement of the sale of K Street, Suburb L in the State of Victoria being the property more properly described in Certificates of Title Volume … Folio … and Volume … Folio … (K Street), the Husband and Wife do all such acts and things as may be necessary to apply the proceeds of sale in the following manner:
21.1 In payment of all costs, commission and expenses of and incidental to the sale;
21.2 To discharge the mortgage to Westpac Banking Corporation Registered Number … secured over the title of K Street;
21.3 The sum of $50,000 to Barbayannis Lawyers, for payment out to the Husband or at his direction (pursuant to the orders made 19 July 2023);
21.4 The sum of $50,000 to Kennedy Partners, for payment out to the Wife or at her direction (pursuant to the orders made 19 July 2023);
21.5 To pay to Kennedy Partners, the solicitors for the Wife, a sum to be calculated in accordance with these orders, being an estimate of the capital gains tax payable by each party arising from the sale of K Street, such sum to be held in trust for the benefit of the parties and not released except in accordance with these orders or written agreement between the parties; and
21.6 The balance be paid to Commonwealth Bank offset account ending #...32 in the joint names of the Husband and the Wife (the CBA offset account).
22 The Husband and Wife forthwith do all such acts and things as may be necessary to place the following properties on the market for sale:
22.1 M Street, Suburb G in the State of Victoria being the property more properly described in Certificate of Title Volume … Folio … (M Street); and
22.2 2 H Street, Suburb G in the State of Victoria being the property more particularly described in Certificate of Title Volume … Folio … (2 H Street).
23 For the purpose of the sale of 1 H Street and M Street (the sales):
23.1 Within 14 days of the date of these orders the Husband and the Wife sign a selling authority with such agent as may be agreed upon in writing between them and in default of agreement the Wife nominate three agents from which the Husband select one (the agent);
23.2 The conveyancer be N Company;
23.3 The reserve price be as agreed between the Husband and Wife in writing but in default of agreement as recommended by the agent;
23.4 The proceeds of each of the sales be applied in the following manner:
23.4.1 In payment of all costs, commissions and expenses of and incidental to the sales;
23.4.2 To discharge the mortgages to:
23.4.2.1 Commonwealth Bank of Australia Registered Number … over the title of M Street (the M Street mortgage);
23.4.2.2 O Bank Registered Number … secured over the title of 2 H Street (the 2 H Street mortgage);
with the mortgage of whichever property settles first to be discharged first and so much of the sale proceeds as may remain to be applied to reduce or discharge the mortgage remaining over the other properties;
23.4.3 To pay to Kennedy Partners, the solicitors for the Wife, a sum to be calculated in accordance with these orders, being an estimate of the capital gains tax payable by each party arising from the sale of M Street and 2 H Street, such sum to be held in trust for the benefit of the parties and not released except in accordance with these orders or written agreement between the Husband and the Wife; and
23.4.4 The balance then remaining be applied as follows:
23.4.4.1 56.5% 57% to the Wife;
23.4.4.2 The balance to the Husband less:
23.4.4.3 a sum to the Wife calculated as X using the following formula:
0.565 0.57 (Z + Y) = W
W – Z = X
where
Z represents the assets to be retained by the Wife
Y represents the assets to be retained by the Husband
W represents the portion of the asset pool to be retained by the Wife
23.4.4.4 The sum of $263,510 to be paid to the Wife in satisfaction of the Husband's obligations pursuant to the lump sum child support orders below .
24 For the purpose of calculating and meeting the cost of any capital gains tax payable on the sale of K Street, 2 H Street and M Street pursuant to these orders:
24.1 Within 7 days of these orders, in relation to K Street, and within 7 days of the date that the Husband and Wife sign a contract of sale in relation to 2 H Street or M Street, the parties jointly appoint P Pty Ltd (the Accountant) to calculate the estimated capital gains tax payable by the Husband and the Wife as a result of the whole of the capital gain from the sale of K Street, Suburb G or M Street, with the parties to do all acts and things and provide all documents reasonably required of them by the Accountant; and
24.2 The Accountant’s costs incurred with respect to the implementation of these orders be paid by the parties in equal shares.
25 The Husband:
25.1 Have sole use and occupation of Suburb E;
25.2 Pending the discharge of the Suburb E mortgage, pay the following expenses of Suburb E as and when they fall due and payable:
25.2.1 Loan repayments associated with the Suburb E mortgage;
25.2.2 Council and water rates, and water usage charges;
25.2.3 House and contents insurance premiums; and
25.2.4 Utilities including but not limited to gas, electricity and internet;
25.3 Pay and indemnify the Wife with respect to all outgoings for Suburb E, including but not limited to council and water rates, water usage charges, and loan repayments associated with the Suburb E mortgage.
26 Pending the discharge of the Suburb E mortgage:
26.1 The Husband and Wife be restrained by injunction from drawing down on the loan secured by the Suburb E mortgage and be at liberty to provide a copy of these orders to Q Company;
26.2 Neither the husband nor the wife encumber or further encumber Suburb E without the written consent of the other party first obtained or except as may be necessary for the Husband to comply with his obligations under these orders; and
27 Pending settlement of the sale of K Street, the sales and the transfer of Suburb G and 1 H Street:
27.1 The Husband and Wife cause all rental income from K Street, M Street, Suburb G, 1 H and 2 H Street (the investment properties) to be paid into the CBA offset account, or, if the settlement of the sale of M Street is effected prior to the sale of K Street or 2 H Street, then into the offset account of whichever of the investment properties is yet to be sold (the investment property offset account);
27.2 The Husband and Wife cause and/or authorise the following to be paid from the CBA offset account or, if applicable, the investment property offset account, the following expenses:
27.2.1 All repayments for the loans secured by mortgage against the investment properties;
27.2.2 Land tax for the investment properties;
27.2.3 Insurance premiums for the investment properties;
27.2.4 Council and water rates for the investment properties;
27.2.5 Maintenance and/or repairs as may be recommended by the rental agents for the investment properties or as otherwise may be agreed upon between the Husband and Wife in writing.
27.3 The Husband and Wife be restrained by themselves, their servants and/or their agents be restrained by injunction from:
27.3.1 Drawing down on any loans secured by mortgage registered against of the investment properties.
27.3.2 Withdrawing and/or removing any funds standing to the credit of either of them, whether jointly or solely, in any offset accounts linked to the loans secured by mortgage registered against any of the investment properties.
28 Upon settlement of the sales and the sale of K Street being effected, any monies standing to the credit of the Husband and the Wife in the investment property offset account or CBA offset account be divided as follows:
28.1 56.5% 57% to the Wife; and
28.2 The balance to the Husband,
with the Husband and the Wife to thereafter close the offset accounts.
29 In the event the Husband fails to discharge the Suburb E mortgage by the due date, Suburb E be placed on the market for sale and for that purpose:
29.1 Within 14 days of the date of these orders the Husband and the Wife sign a selling authority with such agent as may be agreed upon in writing between them and in default of agreement the Wife nominate three agents from which the Husband select one (the agent);
29.2 The conveyancer be N Company;
29.3 The reserve price be as agreed between the Husband and Wife in writing but in default of agreement as recommended by the agent;
29.4 The proceeds of each of the sales be applied in the following manner:
29.4.1 In payment of all costs, commissions and expenses of and incidental to the sales;
29.4.2 To discharge the Suburb E mortgage;
29.5 The balance to the husband.
Preparation of tax returns and payment of CGT
30 By no later than 31 August 2024 or 31 August 2025, in the event 2 H Street, 1 H Street (if applicable) or M Street sell in the 2025 financial year, the Husband and the Wife instruct the Accountant to prepare and lodge their respective tax returns for the financial year ended 30 June 2024, or 30 June 2025 (if applicable), and provide to the Accountant all such documents as may be necessary to enable the Accountant to prepare the returns.
31 Within 7 days of each of the Husband and the Wife receiving his or her notice of assessment for the financial year ended 30 June 2024 or 30 June 2025 (if applicable), the Husband and Wife do all such acts and things and sign all documents as may be necessary to authorise the solicitors for the Wife, Kennedy Partners, to apply any funds held on trust for them pursuant to these orders as follows:
31.1 Such sum to the ATO as may be necessary to meet the Husband and Wife’s respective capital gains taxation liabilities referable to the sale of K Street, 2 H Street (if sold), 1 H Street and/or M Street;
31.2 The balance (if any) be divided as follows:
31.2.1 56.5% 57% to the wife; and
31.2.2 The balance (if any) to the husband.
32 In the event either of the husband or wife’s capital gains taxation liability from the sales or the K Street sale exceeds the estimate provided by the accountant, the husband and the Wife pay any excess capital gains tax as follows:
32.1 56.5% 57% by the wife; and
32.2 The balance by the husband.
Repayment to children’s accounts by the husband
33 Within 7 days of the date of these orders, the husband pay:
33.1 The sum of $4,284.93 to Commonwealth Bank account #...08 in the name of X; and
33.2 The sum of $1,000 to Commonwealth Bank account #...68 in the name of Y.
Defaults
34 Each of the Husband and the Wife do all acts and things reasonably required by the other(s), including but not limited to signing or executing all necessary documents, to give effect to these orders within 14 days of being requested to do so or such earlier time as is provided for in these orders, in default of which:
34.1 Pursuant to section 106A of the Family Law Act 1975 (Cth) (the Act), a Registrar of the Federal Circuit and Family Court of Australia be appointed to sign all such documents in the name of the party who failed and/or refused to sign and return such documents to give effect to these orders, upon the solicitor for the non-defaulting party filing with the court an affidavit deposing to the default;
34.2 The non-defaulting party be at liberty to apply for costs when submitting such affidavit to the Registrar.
Superannuation split
35 Orders 35 to 39 of these orders are binding upon the trustee of Super Fund 1 (the fund), being R Pty Ltd (the trustee).
36 Pursuant to s 90XT(4) of the Act a base amount of $15,343 be allocated to the wife out of the husband’s interest in the fund.
37 Pursuant to s 90XT(1)(a) of the Act, whenever a splitable payment becomes payable in respect of the superannuation interest of the husband in the fund, the wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (the Regulations) using the base amount of $15,343 and there be a corresponding reduction in the entitlement the husband would have had but for these orders.
38 The trustee do all acts and things and sign all documents as may be necessary to:
38.1 Calculate, in accordance with the requirements of the Act, the entitlement of the wife created in the preceding order; and
38.2 Pay the entitlement whenever the trustee makes a splitable payment from the husband’s interest in the fund.
39 Until the happening of any of:
39.1 The establishment of a separate superannuation interest in the name of the wife in the fund;
39.2 The transfer or “rolling over” into another superannuation fund of the payment split created by order 37;
39.3 The wife satisfying a condition of release and being paid the payment split which was created by order 37; or
39.4 The wife exercising a wavier of the rights within the meaning of s 90XZA of the Act in relation to the payment split created by order 37 of these orders;
the husband be and is hereby restrained by himself, his servants or agents from executing a death nomination in favour of any person or doing any other act or thing which would render any part of his interest in the fund a non-splittable payment within the meaning of Regulation 12 or 13 of the Regulations AND the trustee give effect to this order.
40 Orders 36 to 39 of these orders have effect from the operative date, being the fourth business day after service of these orders upon the trustee.
41 Liberty be reserved to the parties and to the trustee to apply with respect to the implementation of these orders affecting the superannuation interest of the husband.
42 Within 28 days of the date of these orders, the wife serve a copy of these orders on the trustee.
Chattels collection and division
43 Within 21 days of the date of these orders the wife be permitted to attend the Suburb E property, on one occasion only, to collect:
43.1 Any items not previously provided to the wife pursuant to Annexure “A” of the orders of 23 November 2022; and
43.2 One half of the remaining chattels to be divided either by agreement or on a pick for pick basis (but not to include the husband’s personal items, items purchased by him since separation or anything belonging to the children) with the wife to have first pick (the chattels division).
44 Both parties be permitted to be present at the chattels division and to enter any part of the home and open any cupboard. Each party may bring with them one person to assist with this process. Any items not removed by the wife during the chattels division will be deemed to be the property of the husband.
45 Pending the chattels division, the husband be restrained by injunction from disposing of, or removing, any chattels located at Suburb E and in the event that the husband has prior to the date of these orders, removed from Suburb E any of the items required for the chattels collection and the chattels division, he return the items to Suburb E within 7 days of the date of these orders.
Other
46 Unless otherwise specified in these orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
46.1 The Husband and the Wife be solely entitled to the exclusion of the other to all other property (including choses-in-action and superannuation benefits) in the legal ownership or possession of such party as at the date of these orders, with the wife to retain her interest in the property at S Street;
46.2 All insurance policies remain the sole property of the owner named thereon;
46.3 The Husband and Wife each be solely liable for and indemnify the other with respect to any liability encumbering any item of property to which that party is entitled pursuant to these orders or any personal liability or debt incurred in that party’s name; and
46.4 Any joint tenancy of the Husband and Wife in any real or personal estate is hereby expressly severed.
Child support
47 Pursuant to s 123(1)(b) and s 123A of the Child Support Assessment Act 1989 (Cth), the husband pay to the wife the sum of $263,510 by way of lump sum child support, with such sum not to reduce the annual rate of child support payable by the husband to the wife under any administrative assessment of child support.
48 All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
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Evidence
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Decision
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Ratio Decidendi
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