Bortoli & Speranza

[2007] FamCA 237

FAMILY COURT OF AUSTRALIA

BORTOLI & SPERANZA [2007] FamCA 237

FAMILY LAW - CHILDREN – Contested child welfare proceedings in the Long Defended List of Cases - All contested issues sensibly adjusted - Consent Orders made.
FAMILY LAW - PROPERTY – Contested property proceedings in the Long Defended List of Cases - All contested issues sensibly adjusted - Consent Orders made.

APPLICANT: Ms Bortoli

RESPONDENT: Mr Speranza

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1954 of 2005

DATE DELIVERED: 15 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 15 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berkovitch

SOLICITOR FOR THE APPLICANT: Harwood Andrews

COUNSEL FOR THE RESPONDENT: Mr Spicer

SOLICITOR FOR THE RESPONDENT: Berry & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Dellidis

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: T J Mulvany & Co

ORDERS RE. CHILDREN’S ISSUES

1. That all previous parenting Orders be discharged.

2. That the husband and wife have equal shared parental responsibility for the long term care welfare and development of the children a daughter born in January 2001 and a son born in June 2003.

3. That the children live with each of the husband and wife as follows:-

   (a)       During school term in a fortnightly cycle:

   (i)from the conclusion of school Friday until the conclusion of school the following Thursday each alternate week with the wife (to commence on the first Friday each term)

   (ii)from the conclusion of school Thursday until the conclusion of school the following Friday each alternate week with the husband.

   (b)For one half of all school holidays at times to be agreed and failing agreement,

   (i)with the wife for the first half and the husband for the second half in even numbered years, and

   (ii)with the wife for the second half and the husband for the first half in odd numbered years

   (c)       On either of the children’s birthday:

   (i)if the birthday falls on a school day, the children shall spend time with the non-resident parent from the conclusion of school until 6:30pm

   (ii)if the birthday falls on a non-school day, the children shall spend time with the non-resident parent for four hours at times to be agreed, and failing agreement, from 10am until 2pm.

   (d)On either parents’ birthday and that parent is not the resident parent on that day:

   (i)from the conclusion of school until 6:30pm with that parent, if a school day, or

   (ii)for six hours at times to be agreed and in default of agreement from 10am until 4 pm with that parent, if a non-school day.

   (e)       For the purposes of Christmas:

   (i)in even numbered years, with the wife from 9am Christmas Eve (24^th December) until 12 noon Boxing Day (26^th December)

   (ii)in odd numbered years from 9am Christmas Eve (24^th December) until 12 noon Boxing Day (26^th December).

   (f)With the wife from 6pm on the evening before Mother’s Day until 5pm on Mother’s Day.

   (g)With the husband from 6pm on the evening before Father’s Day until 5 pm on Father’s Day.

   (h)By telephone, with the non resident parent being at liberty to telephone the children twice weekly on the residential parents’ landline, provided such calls do not exceed 30 minutes and conclude by 7 pm, and each parent shall facilitate all reasonable requests by either child to telephone the other parent.

   (i)At other times as may be agreed between the husband and the wife.

4. That changeover for the purposes of paragraph 3 herein shall occur as follows,

   (a)from the children’s respective school or kindergarten should changeover fall on a school day, or

   (b)should changeover fall on a non-school day at McDonald’s B.

5. That in the event of an emergency or serious illness or injury requiring medical attention whilst in the Husband or the Wife’s care, such parents shall forthwith advise and keep the other parent informed of same.  Otherwise in the event that a parent arranges a non urgent medical/ allied health appointment for either child, they must inform the other parent of same within 4 hours of making such appointment and both parents shall be at liberty to attend such appointment should they wish to.

6. That subject to the discretion of the Manager/ Principal of any kindergarten/ school attended by either or both the children from time to time and upon the Husband and the Wife being responsible in meeting any incidental costs:

   (a)The Husband, the Wife and members of their respective family constellations, shall be at liberty to attend the children’s kindergarten / school functions, concerts and like events customarily attended by parents and members of the family;

   (b)The Husband and the Wife shall be at liberty to receive copies of all school reports, school newsletters and like notices; and

   (c)Arrange an individual parent / teacher interview with a relevant educational professional assisting either one or both of the children.

7. That without the Husband or the Wife admitting the necessity for this Order, the Wife and the Husband, their servants and/or agents be restrained from:-

   (a)       denigrating the other party, their partner or family members; and

   (b)       discussing these legal proceedings and the making of these Orders; and

   (c)financial matters including but not limited to child support issues, provision of clothing and facilities;-

   in the sight and/or hearing and/or presence of either or both the children.

8. That the parties be at liberty to provide a copy of these Orders and a copy of Mr P’s Affidavit filed 16 January 2007 to any one or more of the following:

   (a)Any manager / Principal and / or delegate of same of any kindergarten or school attended by either of the children from time to time;

   (b)Any health and/or allied health professional assisting either or both of the children from time to time; and

   (c)Any relevant Case Worker from the Department of Human Services.

9. That the husband and Wife keep the other informed as to their respective residential address and provide to the other 14 days notice of any proposed change thereto.

10. That the Husband and the Wife keep the other parent informed as to their respective contact phone numbers and forthwith advise the other of any changes to these details within 48 hours.

11. That without either party admitting the necessity for this Order, for a period of 2 years from the date of making these Orders, the Husband and the Wife be restrained from issuing any further child related proceedings in either the Family Court or the Federal Magistrates Court, without the prior leave of a Judge of the Melbourne Registry of the Family Court.

12. That each of the husband and wife shall maintain the children’s enrolment for the remainder of 2007 at their current school and kindergarten.

13. That each of the husband and wife do all things necessary to facilitate the enrolment, commencing 2008, of the daughter at S Primary School in W, and of the son at N Centre, and ensure their attendance at such institutions.

14. That the appointment of the Independent Children’s Lawyer be discharged.

15. That all Applications and Responses in relation to welfare issues filed pursuant to these proceedings be otherwise dismissed and removed from the Active Pending Cases List of this Court.

16. That pursuant to s. 65DA (2) and s. 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 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.

ORDERS RE. PROPERTY ISSUES

1. This is an order to which Section 77A of the Family Law Act 1975 applies.

2. The amount of $25,000.00 of the monies ordered to be paid to the wife or of the value of the property to be transferred to the wife is attributable to the provision of maintenance for the wife.

3. That the husband pay to the wife the sum of $133,000.00 (“the payment”) on or before the 15^th day of April 2007 (“the date”).

4. That contemporaneously with the payment:

   (a)The wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right title and interest in the real property situate at and known as S in the State of Victoria.

   (b)The husband indemnify the wife against all payments and liability pursuant to all mortgages encumbering the property and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.

5. That in the event that the whole of the payment has not been made by the date then the husband sign all documents and do all things necessary to transfer to the wife the real property to be held on trust for sale (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

   (a)Firstly to pay all costs, commissions and expenses of the sale.

   (b)Secondly to discharge the mortgage and any other encumbrance affecting the real property.

   (c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 11 per centum per annum adjusted monthly from the date to the wife.

   (d)Fourthly the balance to the husband.

6. That pending the payment or completion of the sale:

   (a)The husband have the sole right to occupy the real property and that during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due.

   (b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and

   (c)Neither party encumber the real property without the consent in writing of the other party.

7. That the husband forthwith do all necessary acts and things and sign all necessary documents to cause to be transferred to the wife at the expense of the wife the unencumbered title to the BMW motor vehicle presently in the possession of the wife.

8. That as such is practicable the husband ascertain whether the wife has a current tax liability arising from her interest in the parties former business known as A and if so wholly indemnify her in relation to such tax liability, but if there is no liability, forthwith pay to her the sum of $18,000.00 or such lesser sum if there is a liability after deduction of such liability from the sum of $18,000.00.

9. That 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 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 (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the husband).

   (b)Monies standing to the credit of the parties in any joint bank account are to become the property of the husband.

   (c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.

   (d)Insurance policies remain the sole property of the owner named therein.

   (e)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.

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

10. That all extant applications of the husband and the wife be otherwise dismissed.

11. Certify for Counsel.

IT IS DIRECTED

1. That all property/maintenance issues be removed from the Pending Cases List.

2. That the Minutes of Consent Orders remain on the Court file.

3. That the solicitors for the wife file 3 clean copies of these orders within 7 days.

THE COURT NOTES

That the parties intend these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1954  of 2005

Ms Bortoli

Applicant

And

Mr Speranza

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

CHILD WELFARE

1. This matter comes before me in the Long Defended List of cases and involves complex litigation between the husband and the wife. The proceedings concern child welfare issues in respect of a daughter who was born in January 2001 and a son, who was born in June 2003. 

2. I have been advantaged with very helpful Case Outline Documents filed by both the husband, the wife and also by the Independent Children's Lawyer.  I have also read the trial affidavits of both parties together with the two helpful reports of Mr P dated 8 November 2006 and 15 December 2005, together with the affidavit of Dr N, filed on 8 January 2007, Dr H filed on 26 June 2006 and a psychiatric assessment prepared by of Dr E and filed 19 December 2005. 

3. The Case Summary Document provided by the Independent Children's Lawyer was a very helpful document which set out Minutes of Proposed Orders based upon a preliminary review.  I might say, having read the relevant documents, that the preliminary review expressed by the Independent Children's Lawyer was one which sat seamlessly with the best interests of the children and it appeared to me, having read all the documents, all that remained was a dignified and commonsense finetuning between the parties in order to accommodate a sensible settlement rather than travel down the litigious pathway.  Such a course could have been very distressing indeed, given the allegations that were made and thus driven a wedge between the parties which might have had lasting negative impact.

4. I have read the Minutes of Proposed Orders which I have marked Exhibit “1”.  They are Minutes which, in my view, sit satisfactorily with the best interests of the two children.  Having regard to all the matters at my command it seems to me appropriate to make such orders. 

5. The principles governing orders such as this are set out in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the Act”). In considering these orders I must regard the best interests of the children as the paramount consideration. See s 60CA of the Act. In determining what is in their best interests, I must consider those matters set out in s 60CC(1) of the Act. They are the “primary” considerations and “additional” considerations set out in that section. 

6. There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both of their parents. That sits seamlessly of course with the principles and objects of the Act set out in s 60B. The second is the need to protect them from physical or psychological harm, from being subject to or exposed to abuse, neglect or family violence.

7. The allegations that have been made in this matter in the past have been, upon a fair reading, quite disturbing.  However, the report prepared by Mr P dated 8 November 2006 was a very helpful document and in his own inimitable manner, as a highly trained expert in the welfare jurisdiction, he was able to dissect out the issues and place them in a most common sense way before the court. 

8. Under the heading of Conclusions (set out on page 10), Mr P referred to the various issues that had been discussed by him earlier in the report.  However, wisely in my view, he had this to say:

   “In the midst of such an acrimonious relationship and such significant allegations, it is important to not lose sight of the children and their level of coping.  My observation of the children in the company of their parents, both in my office and at home, was unequivocally positive, and in the care of both parents, they clearly have a strong sense of belonging.  [The daughter] is described as a happy, well adjusted child at school, and individual assessment of her revealed no particular area of difficulty.  Likewise, it is important to note that given the nature of the allegations about the abuse, that both she and [the son] approached their father in an unequivocally positive manner, related extremely warmly and interacted confidently with him.  The same was also true for their mother.”

   Mr P then went of to define the issues. 

9. This matter came before me on 12 April 2006 part of case management.  Consent orders were made by me at that time and which have been operating satisfactorily.  It was within that background the matter returned to court and, as I said, a sensible settlement negotiated. 

10. My expectation is that the parties will honour and respect these orders. They must understand that they each have duties and obligations. Those duties and obligations embrace their two children, the daughter and son who have the right to know and be cared for by both of them. The children have a right to spend time on a regular basis with and communicate on a regular basis with both of their parents. I make it clear that the provisions of the Act make it clear that both the husband and wife share duties and responsibilities concerning the care, welfare and development of their children. They should agree about the future parenting of them.

11. My expectation is that this will be the last time the husband and wife enter this court, or I hope any other court and thus move forward within their independent lives and enable the children to develop into well adjusted children and ultimately productive members of the community. 

12. I make orders in terms of Exhibit “ICL1”.  I direct the Independent Children's Lawyer to engross the orders and I will note the removal of the welfare proceedings from the Active Pending Cases List.

PROPERTY

1. Following the parties’ resolution of the child welfare issues they then negotiated the property issues and again, with the exercise of good commonsense adjusted that contest as well.

2. Put simply, it is a five and a half year marriage.  There are two children, to whom I have already referred.  The arrangements are, in summary as explained by Mr Spicer, who appears for the husband, that the husband retain the business.  The real estate has an agreed valuation and the overall asset pool is, in round figures, approximately $725,000.  The wife will receive and retain the BMW motor vehicle, her superannuation and receive a lump sum of $133,000. 

3. There is an additional sum of $18,000, which is referred to on page 2 of the minutes of proposed property orders, which I will make Exhibit “A”.  That has been explained to me by Mr Spicer and from which Mr Berkovitch draws no dissent.

4. Put broadly, the settlement range is something like 35 per cent to 37 per cent in favour of the wife and the balance to the husband.  That appeared to me to be a proper result and is a figure, without wishing to be too presumptuous, that I had in mind by reason of the extensive contribution that was made by the husband through a property owned by him prior to their union.  It was patently obvious from the documents before the court that the agreement sits well within the range of proper adjustment.  The parties had the benefit of excellent legal advice and were able to resolve this issue.  I repeat that they have travelled a long way and leave this court today having reordered their lives into the future and have brought an end to the past.  I wish them both the best and my expectation is that the future will be a bright one for them both.

5. There are obligations on judges of this court to be satisfied that property orders are just and equitable, notwithstanding that they are to be made by consent.  Such are the mandates of the Family Law Act (1975) itself.  I am satisfied that these orders are just and equitable.  Accordingly, I make orders in the terms of Exhibit “A”.  I direct the wife's solicitors to engross the orders in the usual fashion and I note the removal of the property proceedings too from the Active Pending Cases List.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  22 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BORTOLI & SPERANZA