Dalton and Dalton

[2007] FamCA 327

FAMILY COURT OF AUSTRALIA

DALTON & DALTON [2007] FamCA 327

FAMILY LAW - PROPERTY SETTLEMENT & CHILDREN – Bitterly contested child welfare and property proceedings adjusted by resolution – Orders made by consent.

APPLICANT: Mr Dalton

RESPONDENT: Mrs Dalton

FILE NUMBER: MLF 886 of 2005

DATE DELIVERED: 21 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 21 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glover

SOLICITOR FOR THE APPLICANT: Leanne Cain & Associates

COUNSEL FOR THE RESPONDENT: Ms O'Connell

SOLICITOR FOR THE RESPONDENT: Maddens Lawyers

Orders

IT IS ORDERED

Parenting Orders

1. That the Husband and the Wife have equal shared parental responsibility for the children H born in March 1995, L born in October 1996, W born in November 1998 and C born in April 2002 (“the children).

2. That the Husband and the Wife be jointly responsible for making major long term decisions relating to the welfare and development of the children

3. That the Husband and the Wife be solely responsible for making day to day decisions relating to the care, welfare and development of the children the children whilst the children are in their respective care.

4. That the children live with

   (a)       the Husband

   (i)from the conclusion of school Wednesday (or 3.00 pm if a non school day) to before school the following Monday (or 9.00 am if a non school day) and each alternate week thereafter during school terms commencing 28 March 2007

   (ii)for one half of school holidays to be agreed or failing agreement the first half commencing from the conclusion of school to 5.00pm on the day equal to one half of the school holidays

   (iii)from 12 noon on 25 December 2007 to 12 noon on 26 December in 2007 and each alternate year thereafter

   (iv)from 12 noon on 24 December to 12 noon on 25 December in 2008 and each alternate year thereafter

   (v)from 9.00am to 6.00pm Fathers Day in each year

   (vi)for a period of 2 hours on each of the birthdays of the children and the Husband at times to be agreed

   (vii)at such further or other times as the parties agree,

   (b)       the Wife

   (c)for one half of school holidays to be agreed or failing agreement the second half commencing from the 5.00pm on the day equal to one half of the school holidays to the commencement of school

   (d)from 12 noon on 24 December to 12 noon on 25 December in 2007 and each alternate year thereafter

   (e)from 12 noon on 25 December 2007 to 12 noon on 26 December in 2008 and each alternate year thereafter

   (f)from 9.00am to 6.00pm Mothers Day in each year

   (g)for a period of 2 hours on each of the birthdays of the children and the Husband at times to be agreed

   (h)at all other times save for the times referred to in paragraph 4)(a) hereof.

5. That each of the parties be and are hereby restrained by themselves and their servants and agents from denigrating or criticizing the other or a member of the other’s family or household in the presence or hearing of the children.

6. That pursuant to sections 62B and 65DA (2) of the Family Law Act, 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 those particulars are included in these Orders.

Property Orders

1. That the Husband and Wife forthwith each do all acts and sign all documents that may be necessary so that the property situate at S (“the Home”) be placed on the market for sale by public auction with each party being at liberty to bid and purchase the Home should they so desire ("the sale") and the proceeds of sale applied:-

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

   (b)secondly to discharge mortgage to Westpac Banking Corporation and any other encumbrance affecting the former matrimonial home; and

   (c)the balance placed in the Pool of Assets of the parties and disbursed in accordance with paragraph 12 hereof.

2. That the terms and conditions of sale, including the manner of sale and reserve price, and selling agent be as agreed between the parties, and in default of agreement, as determined by the President for the time being of the Real Estate Institute of Victoria, or his/her nominee.

3. That there be liberty reserved to either party to apply with respect to the terms and conditions of and the execution of the sale.

4. That pending the transfer of the home or completion of the sale:

   (a)the Husband have the sole right to occupy the former matrimonial home and during such right of occupation, the Husband

   (i)pay all rates, taxes and like apportionable outgoings of and with respect to the former matrimonial home, as they fall due;

   (ii)maintain the Home in good order and condition (fair wear and tear excepted)

   (iii)pay as and when due the mortgage instalments in respect of the Westpac Bank and indemnify the Wife in respect of any default thereof;

   (b)the parties hold their respective interests in the former matrimonial home upon trust pursuant to this order;

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

5. That

   (a)       The Husband retain his

   (i)N Superannuation entitlement in the United Kingdom, and

   (ii)Right title and interest in A Pty Ltd

   (b)The Wife retain the piano in the Home and may upon prior arrangement with the Husband remove it any anytime (the Wife being responsible for any damage to the Home consequential upon the removal of the piano).

   (c)The Wife will deliver up to the Husband the figurines given to the children by his family for safekeeping and enjoyment by the children during the times that they live with the Husband (the Husband to provide the Wife with a list of figurines from photographs of the figurines to be provided by the wife to the husband).

   (d)The Husband make available for collection by the Wife upon prior arrangement the children’s cubby for the enjoyment by the children during the times that they live with the Wife (the Wife being responsible for the reinstatement of the gardens or any damage to the Home consequential upon the removal of the cubby)

6. That the Pool of Assets (marked “Exhibit “H3” in the proceedings) be disbursed 60% to the Wife and 40% to the Husband and that for the purposes thereof:

   (a)the Husband forthwith transfer to the Wife at the expense of the Wife all his right title and interest in the Toyota Tarago motor vehicle registration No … ;

   (b)that on or before 4.00 pm on 10 April 2007, the Wife

   (i)do all acts and things reasonably required to resign as an Appointor and  Trustee of the D Family Trust (“the Trust”) and to appoint a Trustee nominated by the Husband as a replacement Trustee (if any)

   (ii)transfer and assign to the Husband or as he may direct at the expense of the Husband all her right title and interest in the Trust and any loan account therein.

   (c)that the Husband retain for his own use and benefit his interest in the 354 shares in R Limited (should the shares be held jointly, the Wife do all acts and things and sign all documents reasonably required to transfer to the Husband all her right title and interest in the shares)

7. That the Court being satisfied that procedural fairness has been afforded the Trustee, paragraphs 14(a) to 14(e) of this Order are binding on the Trustee of F

8. That

   (a)the base amount allocated to the wife out of the interest of the Husband in F is $129,903;

   (b)pursuant to paragraph 90MT(1)(a) Family Law Act 1975, whenever the Trustee of F makes a splittable payment from the interest held by the husband, in F, the Trustee shall pay to the wife, or her administrators, executors, beneficiaries, heirs or assigns, the entitlement which is calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001, and there shall be a corresponding reduction in the entitlement the husband would have had in F but for this order;

   (c)paragraph 14(a) of this order has effect from the operative time;

   (d)the operative time for this order shall be the beginning of the fourth business day after the day on which a sealed copy of this order is served on the Trustee, and

   (e)the Trustee of F, the Husband and the Wife, in accordance with the obligations set out and the Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to, the wife in accordance with paragraph 14(b) of this order.

9. That until the happening of any of:

   (a)the establishment of a separate account in the name of the Wife in F; or

   (b)the transfer or "rolling over" into another superannuation fund of the payment split which was created by paragraph 14(b) of this order; or

   (c)the Wife satisfies a condition of release and is paid the payment split which was created by paragraph 14(b) of this order; or

   (d)the Wife executing a waiver or rights within the meaning of Section 90MZA of the Family Law Act in relation to the payment split created by paragraph 20(b) of this order

10. That the husband be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in F a "not splittable payment" within the meaning of regulation 12 or 13 of the family law (superannuation) regulations 2001 and the trustee of F give effect to this order.

(16A)That the husband be liable for and indemnify the wife against all liabilities of whatsoever nature and kind and whensoever arising in respect of the trust and any other entity which the husband owns or has an interest in.

1. That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Order.

   (a)Each party be solely entitled to exclusion of the other to all 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 Home being deemed to be in the possession of the Husband);

   (b)Each forego any claim they may have to any superannuation benefit belonging to or earned by the other;

   (c)Insurance policies remain the sole property of the owner named thereon;

   (d)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;

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

   (f)That the parties hold their interest in any real or personal property upon trust pursuant to these Orders.

2. That otherwise all extant Applications be dismissed and the Matter removed from the Pending Cases List.

3. Certify for Counsel.

AND THE COURT NOTES that the parties intend that 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 886  of 2005

Mr Dalton

Applicant

And

Mrs Dalton

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases.  It was first brought on for mention before me last week arising from a Form 2 Application brought by the husband for an electronic link in order to hear the evidence of the husband’s brother who is a resident in the United Kingdom.  That alone generated a series of issues, about which I need not incorporate into these short remarks, that carried over to the substantive proceedings which commenced before me this day.  Mr Glover appears for the husband and Ms O'Connell for the wife. 

2. The proceedings concern both welfare and property applications and had the potential to run for several days at considerable expense to the parties’ common purse.  I have had the advantage of reading the trial affidavits of the parties, the affidavits of the deponents relied upon by them, the Case Outline Document of the husband, and particularly, so far as the welfare issues are concerned, the two reports by Mr P dated 15 June 2005 and 19 December 2006.  I have been greatly advantaged by those documents. 

3. A short background is as follows.  The wife was born in Australia in October 1965 and is 41 years of age.  The husband was born in the United Kingdom in December 1961 and is thereby 45 years of age.  They married in March 1988 and following unhappy differences between them, separated, as I understand it, under the one roof in about July 2004.  They finally separated in a physical sense in February 2005 when the wife left the former matrimonial home.  Thus, theirs was a union of some 16 years. 

4. There are four children born of their union:  H, who is 12 years, L, who is 10 years, W, who is eight years and C, who is nearly five years of age. 

5. I do not propose to examine the highly contentious background material that brought the parties to court, save to say that they did commence the proceedings this day in heated disagreement and undoubtedly with conflicted polarised expectations.  Their contested applications had the capacity to proceed, as I said, for a number of days. 

6. The parties have undertaken serious negotiation all day and, in my view, both of them have been well served by their professional representatives present at court in accommodating what I regard as a dignified and commonsense adjustment.  Their resolution sits seamlessly within what a court would have done upon contest, insofar as the property matters are concerned.  Insofar as the welfare issues are concerned, the significant aspect is that they have decided the issues themselves.  There were a number of disturbing matters associated with that issue which were skilfully exposed in the last report of Mr P, to which I have just referred. 

7. I had the advantage of discussing the various concerns with counsel this morning in the presence of their respective clients under the umbrella of what the High Court had to say in Johnson v Johnson (2000) 201 CLR 488. I have a ready expectation that the parties will see today as a very important one in their respective lives, move forward and consign the pain of the past to where it belongs. Such an approach can only enure to the benefit of their four children.

8. I am fortified by the fact that the husband has through a process of self‑help sought professional guidance to assist him in parenting the children.  That is an excellent move on his part.  Sometimes proceedings can have a cathartic effect and I rather suspect that is what has happened here.  The parties have resolved the issues themselves which is the strongest foundation for the future.  I emphasise the importance of them bringing to an end all disputation and both work together for the benefit of the four children, who greatly love them.  Of that, there is no doubt.

9. Insofar as welfare issues are concerned, the principles governing this matter are set out in the Family Law Amendment (Shared Parental Responsibility) Act 2006. I have considered the Minute of Consent Orders in deciding whether to approve the orders. I must regard the best interests of the four children as the paramount consideration. Such is the mandate of s 60CA of the Amending Act. In determining what is in their best interests, I must have regard to what are styled “primary” and “additional” considerations. 

10. Of the two “primary” considerations, the first and significant one in this case being the benefit to the four children of having a meaningful relationship with both of their parents.  The provisions of the consent orders provide for that and sit seamlessly within the recommendation of Mr P.  They also accommodate the principles and objects set out in s 60B of the Act. 

11. As to the property proceedings, there are obligations on judges of this court to be satisfied that 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 familiar with the factual matrix of the parties' financial situation and, in my view, the proposed orders are just and equitable, given the particular financial circumstances of the parties.  In the exercise of my discretion, I propose to make the orders.

12. I wish to add one final comment, and perhaps repetitive of my earlier remarks.  I do openly congratulate the parties on having the steel, the commonsense and the dignity in moving forward from this day.  I do expect them both to embrace the full meaning and intent of the orders in achieving that goal.  They have the great advantage of four loving children who seek that the bitter, indeed acrimonious display of dispute between them ends, once and for all.  It is up to them and I am sure that they both will attend to a remedial disposition. 

13. I mark the Minute of Proposed Orders Exhibit "A".

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  19 April 2007

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