Cuthbertson & Cuthbertson

[2007] FamCA 259

FAMILY COURT OF AUSTRALIA

CUTHBERTSON & CUTHBERTSON [2007] FamCA 259

FAMILY LAW - CHILDREN & PROPERTY – Consent Orders made in Standard Track List concerning child welfare and property matters – Summary of issues – Practical resolution of property issue.

S 60CC(1), s 60B Family Law Amendment (Shared Parental Responsibility) Act 2006

APPLICANT: Mrs Cuthbertson

RESPONDENT: Mr Cuthbertson

FILE NUMBER: MLF 1786 of 2006

DATE DELIVERED: 7 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 7 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Li Rosi

SOLICITOR FOR THE APPLICANT: Kliger Partners

COUNSEL FOR THE RESPONDENT: Mr Berger

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers

CHILDREN'S ORDERS

1. That the Wife and the Husband have equal shared parental responsibility for the major long term issues in relation to the care, welfare and development of the children of the marriage E born in September 1995, R born in February 1998 and M born in August 2000 ("the children").

2. That the Wife have the responsibility for the day to day decisions concerning non-major issues relating to the care, welfare and development of the children when they reside with her and that the Husband retain responsibility for the day to day care, welfare and development of the children when they are spending time with or communicating with him.

3. That the children live with the wife.

4. That the children of the marriage will spend time with and communicate with the Husband as follows:

   (a)three weekends out of four from the conclusion of school on Friday until the beginning of school on Monday morning commencing 2 March 2007. Provided however if the Friday preceding the weekend is a public holiday the children shall remain with the Wife until 3.30 p.m. on Friday and if the Monday following a weekend when the children are with the Husband is a public holiday then the children will remain with the Husband until 10.00 a.m. on Monday;

   (b)each Tuesday from the conclusion of school until 8.00 p.m. commencing 20 February 2007 (with the Husband to return the children at the Wife's residence at the conclusion of his period);

   (c)for one half of all school holidays commencing from 10.00 a.m. on the first Saturday of the school holidays to the second Saturday of the school holidays at 5.00 p.m.

   (d)For the long summer vacation as follows:

   (i)in the year 2007 and each alternate year thereafter for second half of the long summer vacation commencing from 10.00 a.m. on a midway point of the long summer vacation until the second day before the commencement of school at 5.00 p.m.  Therefore the children shall live with the wife from the last day of the term for the long summer vacation until the exact midway point of the long summer vacation at 10.00 a.m.; and

   (ii)in the year 2008 and each alternate year thereafter for the first half of the long summer vacation commencing from 10.00 a.m. on the day following the school term until the exact midway point of the school term holidays at 5.00 p.m.  Therefore the children will live with the wife for the second half of the long summer vacation commencing from the exact midway point of the school holidays at 5.00 p.m. to the commencement of school;

   (e)       for Christmas as follows:

   (i)in the year 2007 and each alternate year thereafter the children shall spend time with the Husband from 5.00 p.m. on Christmas Day until 5.00 p.m. on Boxing Day and therefore the children shall live with the Wife from 5.00 p.m. on Christmas Eve until 5.00 p.m. on Christmas Day and on each alternate year thereafter;

   (ii)in the year 2008 and each alternate year thereafter the children shall spend time with the Husband from 5.00 p.m. on Christmas Eve until 5.00 p.m. on Christmas Day and therefore the children shall live with the Wife from 5.00 p.m. on Christmas Day until 5.00 p.m. on Boxing Day and each alternate year thereafter;

   (iii)to ensure that there is no misunderstanding about the interpretation of the Orders in each odd numbered year commencing in 2007 the Wife will provide the Husband with a calendar highlighting the dates in which the children shall be spending time with the Husband and the Wife respectively and in the year 2008 and each even year thereafter the Husband will provide to the Wife a calendar setting out the days which the children shall spend time with the Husband and the Wife respectively.

   (f)on each of the children's and the Husband's birthday from 1.00 p.m. to 7.30 p.m. on a non-school day and from after school to 7.30 p.m. on a school day.  Provided however that should the Wife's birthday fall on a school day when the children are spending time with the Husband the Husband's time with the children shall be suspended from after school until 7.30 p.m. and if the Wife's birthday falls on a non-school day when the children are spending time with the Husband the Husband's time shall be suspended from 1.00 p.m. to 7.30 p.m.

   (g)on Father's Day from the Saturday preceding Father's Day at 5.00 p.m. to Father's Day at 7.00 p.m. provided however if Mother's Day falls during a period when the children are spending time with the Husband, the Husband's time with the children will be suspended from 5.00 p.m. on Saturday preceding Mother's Day until 7.00 p.m. on Mother's Day;

   (h)at such other times as the parties agree;

   (i)the children shall otherwise reside with the Wife at all other times.

5. That the husband's periods of time pursuant to paragraphs 4(a) and (b) herein shall be suspended during the school term holidays and the long summer vacation and resume on the same cycle as if not interrupted by the school holidays.

6. That the Wife give the Husband the first right of refusal if/when she requires assistance and she is unavailable to care for the children and that the Husband give the Wife the first right of refusal if/when he requires assistance if he is unavailable to care for the children.

7. That the handover that does not occur at the children's school to occur at the Wife's home at the commencement of the time the children spend with their father and at the Husband's home at the conclusion of the time the children spend with their father save and except where otherwise stated in these Orders.

8. (a)That the children of the marriage communicate with the Husband via the telephone on Mondays and Thursdays (when they do not spent time with the Husband) between 7:15 p.m. and 7:45 p.m. such communication to be initiated by the Husband.;

   (b)That the wife be permitted to communicate with the children when they are with the Husband each second day between the hours of 7.15 p.m. and 7.45 p.m.

9. That the children of the marriage not be prevented from communicating with either the Husband or the Wife via the telephone at other times at the children's request.

10. That the Husband and Wife each respectively ensure that their landline telephone is operational and available to receive the Husband's or the Wife's telephone calls at the Court appointed times.

11. That the Husband and the Wife establish and use a Communication Journal, such Communication Journal to travel to and from the Husband's and Wife's residence on each period the children spend time with the Husband. 

12. That the Husband and the Wife do not denigrate the other parent in the children's presence or permit anyone else to do so. 

13. That the Husband and Wife do not denigrate the other parent's family or friends in the children's presence or permit anyone else to do so.

14. That the Husband and the Wife do not discuss Court matters in the children's presence or permit anyone else to do so. 

15. That the Husband and the Wife do not make Court documents available to the children or permit anyone else to do so.

16. That the Husband be permitted to attend the children's school for all the children's school related activities including sports events, school concerts etc.

17. That 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.  

Property Orders

1. That the property at M and being the land more particularly described in Certificate of Title Volume … Folio … ("the real property") be forthwith sold out of Court ("the sale").  The sale to be conducted by W Estate Agents of H, or such other real estate agency as the parties agree in writing.

2. That the proceeds of sale of the real property be applied as follows:

   (a)Firstly to pay all costs, commissions and expenses of the sale including the conveyancer appointed by W Estate Agents at the request of the Husband and the Wife (which costs have been quoted to be $687.50 inclusive of GST and excluding disbursements) and further pay K Company  the sum of $229.77 for conveyancing disbursements;

   (b)Secondly to discharge the home loan and line of credit loan to ING Bank (Australia) Limited and being mortgages registered in dealing numbers … and … ("the mortgages");

   (c)Thirdly

   (i)The sum of $1,310.00 to the Husband for roof repairs to the real property;

   (ii)Reimburse to the Wife upon provisions of receipts all sums expended by her to make the real property ready for sale and such reimbursement to be capped to an amount of $1,000.00;

   (d)       Fourthly the sum of $128,690.00 to be paid to the Wife. 

   (i)Should the proceeds of sale not be sufficient to pay the amount of $128,690.00 to the Wife then the wife shall receive the balance of the proceeds of sale and the Husband shall, from his own resources, pay the difference to the Wife so that the Wife receives an amount of $128,690.00 ("the guaranteed amount"). 

   (ii)Provided however if the sale price of the property is between $500,000.00 and $550,000.00 then any net proceeds of sale over the guaranteed amount of $128,690.00 are to be paid to the Australian Taxation Office to defray the husband's taxation liability;

   (iii)Provided further if the proceeds of sale exceeds $550,000.00 then any such excess proceeds after the guaranteed payment to the Wife of $128,690.00 referred to in paragraph 19(d)(i) and the payment to the Taxation Office referred to in paragraph 19(d)(ii) hereof any such excess net proceeds of sale are to be divided in the proportions of:

   A.Fifty per centum thereof to the Husband; and

   B.Fifty per centum thereof to the Wife.

3. That the Husband retain ownership of and possession of the real property known as T being the whole of the land more particularly described in Certificate of Title Volume … Folio … ("the [T] property").

4. That upon the Wife receiving the payment referred to in paragraph 19(d) she will hand over to the Husband a withdrawal of caveat in registrable form for caveat number … registered by her on the T property.

5. That the Husband:

   (a)indemnify and forever release the Wife in relation to any liability owing to the ING Bank (Australia) Limited in mortgage registered number … ("the [T] mortgage);

   (b)pay all instalments pursuant to the T mortgage and all rates and like apportionable outgoings of the T property as they fall due.

6. That if the proceeds of sale of the real property are not sufficient to discharge the guaranteed payment referred to the Wife in paragraph 19(d) of these Orders and the moneys remain outstanding to the Wife for a period of more than thirty days then the Husband and Wife agree:

   (a)that the T property be transferred to the Wife to be held on trust for sale. 

   (b)The T property to be sold as soon as possible out of Court ("the sale") and the proceeds of sale be applied:

   (i)Firstly to all costs, commissions and expenses of the trust transfer and sale;

   (ii)Secondly to discharge the mortgage and any other encumbrance affecting the T property;

   (iii)Thirdly so much of the payment referred to in paragraph 19(d) hereof as is then outstanding together with interest thereon at the rate of twelve per centum per annum adjusted monthly from the date of settlement of the sale of the real property to the date of payment of the guaranteed amount to the Wife;

   (iv)Fourthly the balance to the Husband.

7. That pending the payment or completion of the sale referred to in paragraphs 19 and 23:

   (a)The Wife have the sole right to occupy the real property and the Husband have the sole right to occupy the T property.  During such right of occupation the Husband and Wife be responsible for all instalments pursuant to the mortgage and rates, taxes on the real property as they fall due and that the husband pay all instalments pursuant to the mortgage on the T property and all rates, taxes and like apportionable outgoings on the T property as they fall due;

   (b)The parties hold their respective interest in the real property and T property upon trust pursuant to these Orders;

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

8. That :

   (a)the Husband retain the ownership of the business known as C Company ("the business") and all the assets owned by the business.

   (b)the Wife relinquish any right claim or entitlement which she may have in relation to the assets of the business;

   (c)That the Husband indemnify the Wife against all debts and liabilities of the business and including any liabilities owed by the Husband to his family members and the Australian Taxation Office.

9. That 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 of the other to all property (including choses-in-action) in the possession of such party as at this date.  The furniture, personal possessions and like chattels in the real property are considered to be in the possession of the Wife save and except for the chattels referred to in Annexure A herein which the Husband shall forthwith make arrangements with the Wife to collect the same from the real property;

   (b)moneys standing to the credit/debit of the parties in any joint bank account are to be shared equally between the parties or any debit balance to be paid out by the Husband in full and the account thereafter closed;

   (c)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

   (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 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 the Wife reimburse to the Husband from her share of the proceeds of sale the sum of $1,500.00 being her share of the mediation costs.

11. That the applications of the Wife filed on 2 June 2006 and the Response of the Husband filed on 14 August 2006 be otherwise dismissed.

12. That the parenting Orders made by this Court on 11 October 2006 be otherwise discharged.

IT IS DIRECTED

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

2. That these proceedings be removed from the Pending Cases List maintained by the Court.

3. That all documents produced by subpoena be returned to the parties who produced the documents pursuant to subpoenas filed by either the Husband and/or the Wife.

NOTATION 

A.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. 

B.       In relation to child support the Husband and the Wife agree as follows:

(a)That any child support review presently before the Child Support Agency be withdrawn and/or suspended if necessary.

(b)That for the school year 2007 and until 1 January 2008 the Husband pay by way of child support the following:

(i)School fees for the 2007 school year including excursions;

(ii)Any out of pocket costs not covered by Medicare and/or the Wife's healthcare card for medical, hospital, dental, pharmaceutical and any other like medical expenses;

(c)That if the parties are required by the Child Support Agency to enter into a Child Support Agreement they will to complete a Child Support Agreement in the above terms and lodge the same with the Child Support Agency.

(d)That as and from 1 January 2008 the Husband will pay child support to the Wife as assessed under the Child Support (Assessment) Act 1989 as amended by the Child Support Agency.

C.That if either the Husband or the Wife desire to relocate to outside the Melbourne metropolitan area they are to provide the other party with sixty days written notice of their intention to so relocate

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1786  of 2006

Mrs Cuthbertson

Applicant

And

Mr Cuthbertson

Respondent

REASONS FOR JUDGMENT

1. This matter was to come before me in the Standard Track List of defended cases as part of the “Blitz” commencing on 13 March 2007. 

2. The parties have sensibly adjusted the matter.  I have had assistance from Ms Li Rosi, who appears on behalf of the applicant wife who has outlined the essential background to the adjustment and from which Mr Berger, who appears on behalf of the respondent husband, draws no dissent. 

3. Put simply, the wife is 43 years of age and the husband is 48 years of age.  They commenced cohabitation in February 1992, married in March 1995 and separated in February 2006.  Thus, theirs was a relationship of some 14 years.  There are three children born of their union ranging from 6 to 11 years of age.  The wife has two children of a former marriage aged 17 and 18 years who lived in the household with herself and the husband.  I am helpfully informed by Ms Li Rosi that the children's welfare orders that I have read reflect the recommendations of Dr J, the Family Consultant.

4. There are obligations on judges of this court to be satisfied in child welfare proceedings that proposed orders concerning children are appropriate and in their best interests.  Similarly, in property proceedings there are also obligations to ensure that the orders are just and equitable, notwithstanding that they are made by consent.  Such is the mandate of the Family Law Act itself. 

5. Insofar as the child welfare matters are concerned, in approving the proposed orders I must regard the best interests of the three children as the paramount consideration. In determining what is in their best interest I must consider those matters as set out in section 60CC(1) of the Family Law Amendment (Shared Parental Responsibility) Act (2006) and the primary considerations together with the additional considerations set out in that section.

6. The two primary considerations speak for themselves and I need not record them into this judgment.  Section 60B of the Act sets out the principles when dealing with children.  It is not to be forgotten that the principles underlying the objects of the Act include that these three children have a right to know and be cared for by both their parents.  They have a right to spend time on a regular basis with and communicate on a regular basis with both their parents, and other people significant to their care.  Further, and significantly in my view, the parents jointly share duties and responsibilities concerning the care of their children and should agree about future parenting of them.

1. The detail of the orders in the Minutes tendered for my consideration suggest to me, as I discussed with Ms Li Rosi, that there have been some difficulties in the past.  I am fortified by her submission that the children are “progressing well” within the current arrangement and indeed whilst the welfare orders reflect the recommendations of Dr J, they in fact go beyond his recommendation in terms of the provision of time the children are to spend with their parents.  That augers well for the future. 

2. Insofar as the property matters are concerned, I am informed by Ms Li Rosi that the asset pool lies in the range between $180,000 and $245,000.  It is a modest pool.  One of the difficulties, as I saw it, was the valuation of the husband's business.  The parties made what Ms Li Rosi described as “a pragmatic decision” in coming to their adjustment.  Overall the wife will receive a lump sum of $128,000, referred to in paragraph 19 of the Minutes and which I mark Exhibit “A”.  That, depending upon the valuations which were contested between the parties lies in a range between 58 and 72 per cent.

3. I take the view that where parties are well represented and where they reach an agreement at arms length following contest, that it is not appropriate, except where circumstances so obviously point to the contrary, to interfere with this arrangement.  I accept that it is a pragmatic decision.  I make orders in terms of Exhibit “A.”.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  28 March 2007.

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