Dangerfield & Dangerfield
[2023] FedCFamC1F 512
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dangerfield & Dangerfield [2023] FedCFamC1F 512
File number(s): MLC 3219 of 2021 Judgment of: JOHNS J Date of judgment: 19 May 2023 Catchwords: FAMILY LAW – PARENTING – final orders – where the orders provide for the children to live with the mother and spend time with the father – where eldest child has complex needs – where father’s time with eldest child is in accordance with child’s wishes – where orders are in the best interests of the children
FAMILY LAW – PROPERTY – final orders by consent – just and equitable division of property
Legislation: Child Support (Assessment) Act 1989 (Cth) s 124
Family Law Act 1975 (Cth) s 75(2)
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 19 May 2023 Place: Melbourne Counsel for the Applicant: Ms Damon Solicitor for the Applicant: Hargreaves Family Lawyers Counsel for the Respondent: Appeared in person ORDERS
MLC 3319 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DANGERFIELD
Applicant
AND: MR DANGERFIELD
Respondent
order made by:
JOHNS J
DATE OF ORDER:
19 MAY 2023
UPON APPLICATION MADE TO THE COURT by Ms Damon of counsel for the Applicant and the Respondent in person
THE COURT ORDERS THAT:
PARENTING
RECITALS
A.The wife is known as MS DANGERFIELD and each of these persons are one and the same.
B.For the purposes of these orders, a ‘school day’ is a school term date for Victorian Government schools, or for the particular school at which the children are enrolled and attending at the time the order is applicable.
Parental responsibility
1.The parties have equal shared parental responsibility for Y born in 2013 and X born in 2011.
School term
2.The children live with the Wife.
3.X spend time with and communicate with the Husband as follows:
(a)By telephone/text message/video calling each Tuesday at 7.00pm with X or the Husband to initiate the call (if the call is accepted by X) and the Wife and/or the Wife’s new husband, Mr B (or current husband/partner) not to be in the vicinity when the call occurs;
(b)By telephone/text message/video calling at other days and times as requested by X;
(c)In person at other days and times as requested by X and agreed between the parents in writing; and
(d)At such further or other times and upon such terms as may be agreed between the parents in writing by email.
4.Y spend time with and communicate with the Husband as follows:
(a)Commencing 25 May 2023, and each alternate week thereafter, from the conclusion of school on Thursday (or 9.00am on a non-school day) to the commencement of school on Monday (or 5.30pm if a non-school day);
(b)Commencing 16 May 2023, and each alternate Tuesday thereafter, telephone/text message/video call/email on Tuesday at 7.15pm with Y or the Husband to initiate the call and the Wife and/or Mr B (or current husband/partner) not be in the vicinity when the call occurs;
(c)By telephone/text message/video call/email at other days and times as requested by Y;
(d)In person at such other days and times as requested by Y and agreed between the parents in writing; and
(e)At such further or other times and upon such terms as may be agreed between the parents in writing by email.
5.The Husband is at liberty to contact the children by email at any time and to any email address nominated by the children, or an address as provided by the Husband, with the children to have access to these email accounts on their computers and mobile devices.
School Term Holidays (Terms 1, 2, 3)
6.During all school holiday periods, Y spend time with the Wife and Husband on a week-about basis as follows:
(a)With the Wife
(i)for the second week in 2023 and each alternate (odd) year thereafter; and
(ii)for the first week in 2024 and each alternate (even) year thereafter.
(b)With the Husband:
(i)for the second week in 2024 and each alternate (
oddeven) year thereafter; and(ii)for the first week in 2023 and each alternate (
evenodd) year thereafter.
7.For the purposes of order 6 herein:
(a)The duration of the school holiday period commenced on the Thursday of the last week of the school term and concludes on the Thursday prior to the commencement of the next school term;
(b)Intra School Holiday changeovers occur at 5.30pm, save and except for on special days; and
(c)The balance of the school holiday period continue in accordance with order 4 herein as if the school term time continued.
Long Summer School Holiday Period
8.During the long summer school holiday periods, Y spend time with the Wife and Husband on a week-about basis as follows:
(a)With the Wife:
(i)for the first week in 2023 and each alternate (odd) year thereafter; and
(ii)for the second week in 2024 and each alternate (even) year thereafter.
(b)With the Husband:
(i)for the first week in 2024 and each alternate (
oddeven) year thereafter; and(ii)for the second week in 2023 and each alternate (
evenodd) year thereafter.
9.For the purposes of order 8 herein:
(a)The duration of the summer school holiday period is from 9.00am on 28 December until the commencement of school on the first day of Term 1;
(b)Intra summer holiday changeovers occur at 5.30pm, save and except for on special days;
(c)The Christmas, New Year and Orthodox Christmas arrangements in order 10, 11 and 12 herein, supersede the summer school holiday period arrangements if inconsistent.
Christmas
10.Unless otherwise agreed in writing, Y spend time with the parties over the Christmas period as follows:
(a)In 2023 and odd numbered years thereafter with:
(i)the Husband from 9.00am on Christmas Eve to 9.00am on Boxing Day;
(ii)the Wife from 9.00am on Boxing Day to 9.00am on 28 December;
any order inconsistent with this order be suspended.
(b)In 2024 and even numbered years thereafter with:
(i)the Wife from 9.00am on Christmas Eve to 9.00am on Boxing Day; and
(ii)the Husband from 9.00am on Boxing Day to 9.00an on 28 December;
any order inconsistent with this order be suspended.
New Years’ Eve
11.Unless otherwise agreed in writing, Y spend time with the parties over the New Years’ Eve period as follows:
(a)In 2024 and even numbered years thereafter with the Husband from 9.00am on New Years’ Eve to 9.00am on 2 January;
(b)In 2023 and odd numbered years thereafter with the Wife from 9.00am on New Years’ Eve to 9.00am on 2 January; and
any order inconsistent with this order be suspended.
Orthodox Christmas
12.Y spend time with the Wife for Orthodox Christmas from 9.00am until 5.00pn on 7 January each year and any order inconsistent with this order be suspended.
Special days
13.X communicate with the Husband for special occasions by telephone/text message/video calling/chat service/email with X or the Husband to initiate the call (if the call is accepted by X) and the Wife and/or Mr B (or current husband/partner) not be in the vicinity when the call occurs as follows:
(a)On Father’s Day at 5.00pm;
(b)For X’s birthday at 5.00pm;
(c)For the Husband’s birthday at 5.00pm; and
(d)For Christmas Day (25 December) at 5.00pm
14.Y spend time with the Husband, if she is not already in his care:
(a)For Father’s Day from 9.00am to 5.00pm;
(b)For the Husband’s birthday from 9.00am to 7.00pm if a non-school day and fro the conclusion of school until 7.00pm if a school day; and
Any provision for time that is inconsistent with this order be suspended so as to facilitate time under this order.
15.Y spend time with the Wife, if she is not already in her care:
(a)For Mother’s Day from 9.00am to 5.00pm;
(b)For the Wife’s birthday from 9.00am to 7.00pm if a non-school day and from the conclusion of school until 7.00pm if a school day; and
Any provision for time that is inconsistent with this order be suspended so as to facilitate time under this order.
16.For Y’s birthday with the parent that Y is not already in the care of from 9.00am to 2.00pm if a non-school day and from the conclusion of school until 7.00pm if a school day.
Changeover
17.The changeover occur:
(a)At the children’s school(s) on a school day;
(b)On a non-school day, at McDonald’s Suburb C (Corner of D Street); and
(c)As otherwise agreed between the parties in writing.
18.For the purposes of order 17 herein, if the children or either of them do not attend school on a school day, then changeover is still to occur at school at the usual school conclusion time.
Medical
19.Each parent inform the other parent as soon as reasonably practicable as to any serious illness, accident, hospitalisation or medical condition with respect to the children whilst they are in that parent’s care and keep the other parent informed of any recommended treatment and/or any prescribed medication to be administered to the children and each parent provide all necessary authorities to enable the children’s treating medical practitioners to communicate with the other parent.
20.The parties be at liberty to provide a copy of these orders to any of the children’s medical professionals as may be required from time to time.
21.Pursuant to order 1, both parents are to copy the other parent into all emails and correspondence with any of the children’s treating medical and allied health professionals.
Communication between the parents
22.The parties communicate by email concerning the care and/or welfare of the children unless urgent and the parties be at liberty to communicate with each other via text message or phone call, in relation to urgent issues.
23.The Husband be at liberty to purchase the children mobile phones and contact the children directly on those mobile phones pursuant to these orders.
Travel interstate
24.Unless otherwise agreed in writing, in the event either parent seeks to travel interstate with the children or either of them they shall give the other parent at least twenty-one (21) days’ written notice of their intention to so travel with all itinerary details including the following:
(a)The date that the child/ren will be departing and returning to Melbourne;
(b)Flight and/or vessel details including carrier and flight number (if relevant); and
(c)The address and telephone number of each accommodation where the child/ren will be staying and the dates of each stay.
International travel
25.The children Y born 2013 and X born 2011 be permitted to leave the Commonwealth of Australia AND IT IS DIRECTED that the Australian Federal Police (AFP) remove the name of the children or either of them from the Airport Watch List (if applicable) in force at all points of arrival and departure in the Commonwealth of Australia (Watchlist).
International Travel – during scheduled time
26.Unless otherwise agreed in writing, each party be at liberty, during his / her scheduled time with children or either of them, to travel overseas, subject to the following conditions:
(a)that party provide to the other party, 21 days prior to commencement of overseas travel (unless the parties agree to a shorter notice period for a particular period of travel);
(b)The date that the child/ren will be departing and returning to Melbourne;
(c)Flight and/or vessel details including carrier and flight number (if applicable);
(d)The address and telephone number of each accommodation where the child/ren will be staying and the dates of each stay;
(e)Evidence of travel insurance for the child/ren; and
(f)Proof of any immunisations which may be required for the purposes of travel;
(g)The travel must not impact the provisions of orders 10 to 16 inclusive (special occasions) without prior agreement in writing between the parties; and
(h)The travel must occur during school holiday periods only unless there is prior agreement in writing between the parties.
International Travel – during the other parent’s time
27.Unless otherwise agreed in writing, the parties may elect to travel overseas with the children for a two-week block (14 days, 13 nights) in the school holidays, subject to the following conditions:
(a)The party seeking to travel notify the other party of their election to travel by 15 February of that school year.
(b)The parent who misses their usual time with the child/ren shall have an additional week of make-up time during the next school holiday period, being the other parents’ usual first week of that school holiday period.
(c)That party provide to the other party, 21 days prior to commencement of overseas travel (unless the parties agree to a shorter notice period for a particular period of travel):
(i)The date that the children will be departing and returning to Melbourne;
(ii)Flight and/or vessel details including carrier and flight number (if applicable);
(iii)The address and telephone number of each accommodation where the child/ren will be staying and the dates of each stay;
(iv)Evidence of travel insurance for the child/ren; and
(v)Proof of any immunisations which may be required for purposes of travel.
(d)The travel must not impact the provisions of orders 10 to 16 inclusive (special occasions) without prior agreement in writing between the parties.
(e)The travel must occur during school holiday periods only unless there is prior agreement in writing between the parties.
(f)The party taking the child/ren overseas is to cover the entire cost of:
(i)An application/renewal of any of the child/ren’s passports;
(ii)Required immunisations for the purpose of travel.
(g)The traveling parent whilst overseas with the child/ren, shall arrange time for the child/ren to communicate with the non-travelling parenting by means of telephone, skype, of facetime at least twice weekly.
28.The children’s passports be held by the Wife.
29.If the Husband requires the child’s passport to travel, the Wife shall provide the passport to him at least 7 days prior to the travel and he shall return the passport to the Wife within 72 hours of the child’s return to Australia.
Other
30.The Wife and Husband by themselves, their servants and agents, be and are hereby restrained from:
(a)Denigrating, criticising, or belittling the other party, and/or the other party’s family and friends, to and/or in the hearing of the children or either of them; and
(b)Allowing another to engage in the conduct referred to in order 30(a) herein.
31.The parties be and are hereby restrained from referring to the children’s surname as anything other than “Dangerfield”.
32.That neither parent will facilitate the children’s enrolment or participation in any extracurricular activity or pursuit that may impact on the children’s scheduled time with the other parent without first obtaining the other parent’s consent.
33.Each parent be at liberty to attend at the children’s school including to attend parent teacher interviews and other school functions at which parents are ordinarily are invited.
34.Each parent be at liberty to attend at the children’s agreed extra-curricular activities that occur during their respective time with the child/ren.
35.Pursuant to section 68Q and 68P of the Family Law Act 1975, to the extent that any part of these Orders is inconsistent with a provision of any existing family violence order, including but not limited to Intervention Order made late 2022 (Case Number …) these Family Law Act Orders shall prevail.
36.The Husband be permitted to provide a copy of these Orders to Victoria Police and/or the Magistrates’ Court of Victoria for use in any intervention order proceedings, including but not limited to, Case Number ….
Child support
37.That in the event that the Wife is an eligible carer for the child X born in 2011 pursuant to sections 123(1)(a) and 124 of the Child Support (Assessment Act) 1989 (Cth) and until X turns 18 or completes secondary school (whichever is later), the Husband pay or cause to be paid the following expenses by way of non-periodic child support for X as and when they fall due and payable:
(a)50% of all school fees, levies, compulsory contribution and charges at E School or such other school(s) as may be agreed between the parties;
(b)50% of all educational expenses and compulsory school requisites including but not limited to text books, uniforms, school camps, school excursions, equipment, stationery and technology expenses;
(c)50% of all agreed extra-curricular activity expenses including but not limited to membership fees, competition fees, equipment fees, lesson fees and uniform fees including shoes and other necessary items; and
(d)50% of all gap medical, dental, optical, psychiatric, psychological, allied health, therapeutic and orthodontic expenses to the extent that these expenses are not covered by private health insurance (if any), the NDIS or Medicare;
with such payments to be in addition to and not in substitute for any assessment that may apply.
38.That in the event that the Wife is an eligible carer for the child Y born 2013, pursuant to sections 123(1)(a) and 124 of the Child Support (Assessment Act) 1989 (Cth) and until Y turns 18 or completes secondary school (whichever is later), the Husband pay or cause to be paid the following expenses by way of non-periodic child support for Y as and when they fall fur and payable:
(a)50% of all school fees, levies, compulsory contribution and charges at F School or such other school(s) as may be agreed between the parties;
(b)50% of all educational expenses and compulsory school requisites including but not limited to text books, uniforms, school camps, school excursions, equipment, stationery and technology expenses;
(c)50% of all agreed extra-curricular activity expenses including but not limited to membership fees, competition fees, equipment fees, lesson fees and uniform fees with each party to purchase a set of uniforms for Y including shoes and other necessary items; and
(d)50% of all gap medical, dental, optical, psychiatric, psychological, allied health, therapeutic and orthodontic expenses to the extent that these expenses are not covered by private health insurance (if any), the NDIS or Medicare;
with such payments to be in addition to and not in substitute for any assessment that may apply.
39.The Husband pay the non-periodic child support referred to in orders 37 and 38 herein:
(a)Where possible, directly to the institution(s), vendor(s) or provider(s) concerned; or
(b)Where the Wife has incurred an expense, the Husband reimburse her within 7 days of a request in writing from the Wife and production by the Wife of a receipt evidencing payment, by direct deposit to a bank account nominated by her.
40.The Wife pay the non-periodic child support referred to in orders 37 and 38 herein:
(a)Where possible, directly to the institution(s), vendor(s) or provider(s) concerned; or
(b)Where the Husband has incurred an expense, the Wife reimburse him within 7 days of a request in writing from the Husband and production by the Husband of a receipt evidencing payment, by direct deposit to a bank account nominated by her.
41.The parties do all acts and things necessary to provide a copy of these others to:
(a)The Department of Families, Fairness and Housing; and
(b)The Principals of the Children’s present and future schools; and
(c)The School Psychologist of the Children’s present and future schools; and
(d)Any medical and / or allied health professionals engaged on behalf of and working with the children, or either of them.
42.Pursuant to ss,65DA(2) and 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 are set out in Annexure A and these particulars are included in these orders.
43.That all extant parenting applications be dismissed.
PROPERTY ORDERS
Controlled monies Account
1.The parties do all things necessary to instruct Hargreaves Family Lawyers to pay the funds held in the Hargreaves Family Lawyers Controlled Money Account on trust on behalf of the parties (being $332,356.64 plus interest) as follows (with this order to be taken as written authority of the parties’ instructions):
(a)within 7 days of the date of these orders the sum of $178,385 to the Wife;
(b)the balance thereafter be divided as to:
(i)$98,453.32 to the Wife, with such sum to be paid to the Wife within 7 days of the date of these orders; and
(ii)$53,013.32 to the Husband, with such sum to be paid as follows:
1.the sum of $30,000 to be paid to the Husband within 7 days of the date of these orders; and
2.the balance to be paid to the Husband contemporaneously with the Wife receiving the whole of the Wife’s Payment as defined in order 11; and
(c)any balance after the payment in order 1(b)(ii)(2) (being any accrued interest) be paid contemporaneously with the Wife receiving the whole of the Wife’s Payment as to:
(i)65% to the Wife; and
(ii)35% to the Husband.
NAB Business Banking Facilities
2.Within 60 days of the date of these orders, the Husband in his personal capacity and/or his capacity as Director of G Pty Ltd do all such acts and things and sign all such documents as is necessary to reduce all business banking facilities in the name of G Pty Ltd, including but not limited to:
(a)Trade Finance (no account number) with a current outstanding balance of approximately $333,822.78 DR and a current limit of $500,000;
(b)Business Overdraft (account ending #...04) with a current outstanding balance of $146,726.06 DR and a current limit of $150,000;
(c)Business Credit Card (account ending #...11) with a current outstanding balance of approximately $8,19724 DR and a current limit of $20,000;
(d)Direct Debit System (no account number) with no outstanding balance and a current limit of $50,000;
(collectively, the Business Banking Facilities), such that they have a total outstanding balance and limit of not more than $325,000 DR.
3.Pending the Husband’s compliance with order 2, the Husband in his personal capacity and/or his capacity as Director of G Pty Ltd be and is hereby restrained by injunction from accessing, drawing upon utilising the Business Banking Facilities or causing the outstanding balance to increase as follows:
(a)the Trade Finance (no account number) to increase no further than $334,000 DR (current facility limit of $500,000); and
(b)the Business Overdraft (account ending #...04) to increase no further than $150,000 DR (current facility limit of $150,000).
4.Upon the Husband’s compliance with order 2 and until such time as he meets his obligations under order 12, the Husband in his personal capacity and/or his capacity as Director of G Pty Ltd be and I hereby restrained by injunction from increasing in anyway whatsoever the total outstanding balance and limit of the Business Banking Facilities to more than $325,000 DR.
Sale of the H Street Units
5.The parties do all acts and things and sign all documents necessary to sell the following real properties:
(a)1 H Street, Suburb J (Certificate of Title Volume … Folio …) (Unit 1); and
(b)2 H Street, Suburb J (Certificate of Title Volume … Folio …) (Unit 2)
(the H Street Units).
6.The parties sell the H Street Units in accordance with the following terms and conditions (the H Street Sales), unless otherwise agreed between the parties in writing:
(a)Within 7 days from the date of these orders, the Husband nominate either Ms K from L Real Estate or Mr M from N Real Estate as Sales Agent (the H Street Agent);
(b)Within 7 days from the date of these orders, the Husband propose two conveyancers or lawyers from which the Wife is to select one within 7 days PROVIDED THAT it is no P Conveyancers (the H Street Conveyancer) with all fees and disbursements incurred with the H Street Conveyancer’s appointment to be shared equally by the parties;
(c)Within 7 days of the Husband nominating the H Street Agent in accordance with order 6(a), the Wife do all such acts and things and sign all documents necessary to:
(i)Execute an exclusive selling authority in favour of the H Street Agent, of no more than 60 days duration;
(ii)Formally engage the H Street Conveyancer;
(iii)Authorise the H Street Agent and the H Street Conveyancer to communicate with the Husband (and/or his solicitor) in relation to all aspects of the Sale including but not limited to informing him of all and any offers to purchase;
(iv)Authorise the Property Manager to communicate with the Husband (and/or his solicitor), and the H Street Agent in relation to all aspects of the Sale including but not limited to coordinating access for preparation of sale works, property inspections and other marketing activities;
(v)Direct the H Street Agent and H Street Conveyancer that the Sale and distributions of proceeds of sale is to occur pursuant to these orders, and the Wife be and is hereby authorised to provide a copy of these orders to the H Street Agent and the H Street Conveyancer.
(d)The method of sale to be agreed between the parties in writing and if there is no agreement then as recommended by the H Street Agent in writing;
(e)The reserve price will be as agreed between the parties but not less than the combined expert valuation figure of $1,530,000 and if there is no agreement, as recommended by the H Street Agent in writing; and
(f)The properties may be sold separately or together as agreed between the parties and if there is no agreement, as recommended by the H Street Agent in writing.
Preparing the H Street Units for Sale
7.Unless otherwise by written agreement, the Wife be restrained from entering into a new Lease Agreement or extending the current Lease Agreement(s) in respect of the H Street Units.
8.The Wife provide the tenant(s) with notice to vacate with a termination date as agreed between the parties in writing, and in the event there is no agreement, a termination date in accordance with the terms of the current Lease Agreements and/or the minimum notice required under the Residential Tenancies Act 1997 (Vic) (the Termination Date).
9.For the purposes of preparing the H Street Units for sale:
(a)As soon as practicable, the parties obtain the written recommendations from the H Street Agent as to what repairs and maintenance are necessary to maximise the sale result and in order of priority (the Agreed Repair Works);
(b)The Husband shall obtain two quotes for the Agreed Repair Works in order of priority from which the Wife is to select one within 48 hours;
(c)The Husband pay for the Agreed Repair Works at first instance, on the basis that he not spend more than $30,000 in total (including GST) on the Agreed Repair Works with the $30,000 limit to apply both to works that the Husband pays for upfront and any works that are to be paid at settlement of the sale;
(d)For the purposes of order 9(c):
(i)The Husband shall be reimbursed at the settlement of the sale of the H Street Units from the net proceeds of sale;
(ii)Any supplier engaged in the preparation of the properties for sale, whose invoice remains unpaid will be paid at settlement from the net proceeds of sale;
(iii)The Husband shall provide all relevant invoices to the Wife or the Wife’s solicitor no less than 7 days prior to settlement of the sale of the H Street Units; and
(iv)The Husband be at liberty to expend his own labour at no charge, and to purchase associated materials, hardware, consumables and third-party services (the Purchases) for works in preparation of the properties for sale and pre-settlement maintenance. With regard to reimbursement the Purchases will form part of the Agreed Repair Works.
(e)The Husband shall be provided with keys to the H Street Units and have access from the Termination Date until settlement of the sale of the H Street Units, unless otherwise directed by the H Street Agent;
(f)The Wife shall be permitted to attend the H Street Units for the purposes of inspecting the property and for that purpose:
(i)The Wife shall provide the Husband with 48 hours’ notice of her attendance and the estimated duration of her attendance; and
(ii)The Husband is not to attend the property for that duration.
Arrangements pending settlement of the sale of the H Street Units
10.Pending settlement of the sale of the H Street Units:
(a)For the duration that Unit 1 remains tenanted, the Wife retain the rental income and pay 100% of all outgoings, including but not limited to building insurance premiums, municipal rates and water rates (the Outgoings);
(b)From the date that Unit 1 becomes vacant:
(i)Each party pay and indemnify the other as to 50% of all the Outgoings; and
(ii)In the event either party fails to pay the Outgoings there be an adjustment of the unpaid amount at the settlement of the sale of the H Street Units from the monies owed to the parties.
(c)For the duration that Unit 2 remains tenanted, the Wife retain the rental income and pay 100% of all the Outgoings;
(d)From the date Unit 2 becomes vacant:
(i)Each party pay and indemnify the other as to 50% of all Outgoings; and
(ii)In the event either party fails to pay the Outgoings there be an adjustment of the unpaid amount at the settlement of the sale of the H Street Units from the monies owed to the parties.
(e)Other than provided in these orders, the parties be restrained from selling, transferring, disposing of, encumbering or otherwise dealing with the H Street Units without the prior written consent of the other party; and
(f)The parties will continue to hold their interests in the H Street Units upon trust pursuant to these orders.
Settlement of the Sale of the H Street Units
11.The Wife be paid a total of 65% of the net proceeds of sale of the H Street Units (such sum to be paid in accordance with orders 12 to 16) with the net proceeds of sale to be calculated as the price in the Contract of Sale for Unit 1 and Unit 2 (subject to any adjustments with the purchasers at settlement), less:
(a)the H Street Agent’s fees, commission and advertising in relation to Unit 1 and Unit 2, if not already paid prior to settlement;
(b)the H Street Conveyancer’s costs in relation to Unit 1 and Unit 2, if not already paid prior to settlement;
(c)the sum of $143,624.89 (being the amount to be held for Capital Gains Taxation); and
(d)the sum to be paid:
(i)to the Husband to reimburse him for the expenses paid by him for the Agreed Repair Works; and
(ii)to pay any outstanding invoices in relation to the Agreed Repair Works
(the Wife’s Payment)
AND THE COURT NOTES THAT the calculation of the Wife’s Payment specifically excludes any amount taken at settlement to discharge the mortgage defined in order 12(a).
12.On or before settlement of the sale of Unit 1 or Unit 2 (whichever property settles first), the Husband at his sole expense do all things necessary to:
(a)discharge the mortgage to the National Australia Bank encumbering Unit 1 and Unit 2 (being mortgage number …) and provide written evidence of same to the Wife or her lawyer; and
(b)release the Wife from any personal guarantee she has given of whatsoever nature in relation to G Pty Ltd, including but not limited to the personal guarantee provided by her to NAB in relation to the Business Banking Facilities and provide written evidence of same to the Wife or her lawyer.
13.At settlement of the sale of Unit 1 or Unit 2 (whichever property settles first), the proceeds of sale be applied in the following manner and priority:
(a)to pay the H Street Agent’s fees, commission and cost of advertising if not already paid prior to settlement;
(b)to pay the H Street Conveyancer’s costs, if not already paid prior to settlement;
(c)to pay the sum of $143,624.80 (being $130,586 plus 10%, representing the estimated CGT) to a controlled monies account in the joint names of the parties to be held by the Wife’s lawyer (the CGT CMA account) and disbursed in accordance with orders 22 to 24;
(d)to pay to the Husband any amount necessary to reimburse him for the Agreed Repair Work;
(e)to pay any outstanding invoices in relation to the Agreed Repair Works;
(f)to pay to the Husband the sum of $325,000, conditional upon him:
(i)having already complied with his obligations pursuant to order 12; or
(ii)contemporaneously complying with his obligations pursuant to order 12 at settlement; and
(g)the balance to the Wife, with any sum paid to her pursuant to this order to be taken to be part of the Wife’s Payment.
14.At settlement of the sale of Unit 1 or Unit 2 (whichever property settles second), the proceeds of sale be applied in the following manner and priority:
(a)to pay the H Street Agent’s fees, commission and cost of advertising, if not already paid;
(b)to pay the H Street Conveyancer’s costs, if not already paid;
(c)to pay to the Husband any amount necessary to reimburse him for the Agreed Repair Works, if not already paid;
(d)to pay any outstanding invoices in relation to the Agreed Repair Works, if not already paid;
(e)to pay to the Wife so much as is necessary to make the whole of the Wife’s Payment, having regard to any amount already paid to her pursuant to order 13(g); and
(f)the balance, if any, to be paid to the Husband.
15.If the amounts paid to the Wife pursuant to orders 13(g) and 14(e) are insufficient to meet the whole of the Wife’s Payment, the Husband pay to the Wife the amount necessary to make the whole of the Wife’s Payment as follows:
(a)First, the parties Hargreaves Family Lawyers (with this order to be taken as written authority of the parties’ instructions) to pay to the Wife so much of the Wife’s Payment that is owed to her, from the funds held on trust on behalf of the Husband pursuant to order 1(b)(ii) with the payment to be made to the Wife contemporaneously with settlement of the sale of Unit 1 or Unit 2 (whichever property settles second); and
(b)Second, if there is still a shortfall after the payment in order 15(a), the Husband pay to the Wife so much of the Wife’s Payment that is owed to her with the payment to be made contemporaneously with the settlement of the sale of Unit 1 or Unit 2 (whichever property settles second).
16.If the Husband defaults pursuant to order 15(b):
(a)the Wife has liberty to apply to the court to enforcer the Wife’s Payment; and
(b)interest accrue on the Wife’s Payment at the rate prescribed in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, from the date of the settlement of the sale of Unit 1 or Unit 2 (whichever property settled second) and to be calculated monthly.
17.Pending the Wife receiving the whole of the Wife’s Payment, the Husband be restrained by injunction by selling, transferring or disposing of Motor Vehicle 1 (registration …).
18.On or before the respective settlements of each of the H Street Units, the Husband at his expense do all things necessary to withdraw the following caveats lodged by him or on his behalf:
(a)caveat number … encumbering Unit 1; and
(b)caveat number … encumbering Unit 2
Capital Gains Taxation
19.By 31 October in the financial year immediately following the sale of Unit 1, the parties shall do all acts and things and sign all necessary documents to:
(a)Prepare, draft and lodge their respective Individual Tax Returns for the financial year in which Unit 1 was sold; and
(b)Instruct Q Accountants, or such other Accountant as agreed between the parties in writing (the Accountant) to determine the Capital Gains Taxation payable on the sale of Unit 1 and inform the parties and their solicitor(s) in writing.
20.By 31 October in the financial year immediately following the sale of Unit 2, the parties shall do all acts and things and sign all necessary documents to:
(a)Prepare, draft and lodge their respective Individual Tax Returns for the financial year in which Unit 2 was sold; and
(b)Instruct the Accountant to determine the Capital Gains Taxation payable on the sale of Unit 2 and inform the parties and their solicitor(s) in writing.
21.For the purpose of order 19(b) and 20(b), the parties shall equally pay the cost of the Accountant.
22.Within 7 days of the Wife’s Notice of Assessment being issued which includes the Capital Gains Taxation payable in relation to the sale of Unit 1, the parties’ instruct Hargreaves Family Lawyers (with this order to be taken as written authority of the parties’ instructions), to pay to the ATO from the funds held in the CGT CMA Account, such sum as is required to pay the CGT on the sale of Unit 1.
23.Within 7 days of the Wife’s Notice of Assessment being issued which includes the Capital Gains Taxation payable in relation to the sale of Unit 2, the parties’ instruct Hargreaves Family Lawyers (with this order to be taken as written authority of the parties’ instructions), to pay to the ATO from the funds held in the CGT CMA Account, such sum as is required to pay the CGT on the sale of Unit 2.
24.If there are funds remaining in the CGT CMA Account after both payments have been made pursuant to order 22 and 23, within 7 days of both payments having been made, the parties’ instruct Hargreaves Family Lawyers (with this order to be taken as written authority of the parties’ instructions), to pay the balance of the CGT CMA Account as to:
(a)65% to the Wife; and
(b)35% to the Husband.
25.If the CGT payable in relation to Unit 1 and Unit 2 exceeds the funds held in the CCGT CMA Account, each party pay and indemnify the other as to the balance of the CGT liability in the proportions 65% to the Wife and 35% to the Husband.
Entities
26.Contemporaneously with the Wife receiving the whole of the Wife’s Payment, the Wife do all things necessary to transfer to the Husband (at his expense) all of the Wife’s interest in G Pty Ltd, including but not limited to:
(a)the Wife’s shareholdings in G Pty Ltd;
(b)any loan account in the Wife’s name (debit or credit) with G Pty Ltd.
27.within 30 days of the date of these orders, the parties do all acts and things and sign all documents necessary to:
(a)Transfer to the Husband (at his expense including the payment of ASIC fees and accounting fees) all of the Wife’s interest in R Pty Ltd, including but not limited to the Wife signing all documents and doing all things to transfer her shareholding to the Husband;
(b)Transfer to the Husband (at his expense including the payment of ASIC fees and accounting fees) all of the Wife’s interest in the S Trust, including but not limited to the Wife signing all documents and doing all things to remove herself as a beneficiary.
(c)Wind up T Pty Ltd at the joint expense of the parties as to any ASIC fees or accounting fees as invoiced by U Accountants to a total of no more than $785 plus GST/
V Street Property
28.Within 60 days of the Wife receiving the Wife’s Payment (the Date), the Wife do all acts and things and sign all documents as it necessary to (at her expense):
(a)discharge the NAB mortgage (Instrument number …) secured over the property at V Street, Suburb W (Certificate of Title Volume … Folio …) (V Street Property); and
(b)release the Husband as guarantor for the V Street mortgage.
and provide written evidence of same to the Husband.
29.Contemporaneously with the Wife complying with her obligations pursuant to order 28:
(a)the Husband (at his expense) withdraw the caveat lodged by him or on his behalf (Instrument number …) against the V Street mortgage; and
(b)the Wife retain the V Street Property to the exclusion of the Husband.
V Street Property Default Sale
30.if the Wife fails to comply with order 28, the parties do all acts and things and sign all documents necessary to sell the V Street Property in accordance with the following terms and conditions, unless otherwise agreed between the parties in writing (the V Street Default Sale):
(a)Within 7 days of the Date, the Wife nominate two Sales Agents from which the Husband is to select one within 7 days (the V Street Agent);
(b)Within 7 days of the Date the Wife nominate two conveyancers or lawyers from which the Husband is to select one within 7 days (the V Street Conveyancer);
(c)Within 7 days of the Husband nominated the V Street Agent in accordance with order 29(a) the Wife do all such acts and things and sign all documents necessary to:
(i)Execute an exclusive selling authority in favour of the V Street Agent, of no more than 60 days duration;
(ii)Formally engage the V Street Conveyancer;
(iii)Authorise the V Street Agent and the V Street Conveyancer to communicate with the Husband (and/or his solicitor) in relation to all aspects of the V Street Default Sale including but not limited to informing him of all and any offers to purchase; and
(iv)Authorise the Property Manager to communicate with the Husband (and/or his solicitor) and the V Street Agent in relation to all aspects of the V Street Default Sale;
(d)The method of sale be as agreed between the parties in writing and if there is no agreement then as recommended by the V Street Agent in writing;
(e)The reserve price be as agreed between the parties in writing and if there is no agreement then as recommended by the V Street Agent in writing;
31.With respect to the V Street Default Sale:
(a)As soon as practicable, the parties seek the written recommendation of the V Street Agent as to whether the property should be sold with vacant possession or subject to an existing tenancy.
(b)If the V Street Agent recommends that the V Street be sold with vacant possession , the Wife:
(i)Provide the tenants of the V Street property with notice to vacate with a termination date allowing for the minimum notice required under the Residential Tenancies Act 1997 (Vic); and
(ii)Keep the Husband informed as to the date in which the V Street tenant must vacate.
32.Upon settlement of the sale of the V Street Property, the proceeds of sale be applied in the following manner and priority:
(a)to discharge the V Street mortgage encumbering the V Street property;
(b)to pay the costs of the sale, including the V Street Agent’s fees and commissions, advertising and marketing costs and the V Street Conveyancer’s feed and disbursements;
(c)the balance or shortfall (if any) to become the asset/liability of the Wife.
33.Pending settlement of the sale of the V Street Property:
(a)The Wife retain the rental income;
(b)The Wife pay all outgoings and expenses in relation to the V Street Property, including but not limited to building and contents insurance premiums, municipal rates, water rates and owners corporation fees; and
(c)Other than provided for in these orders, both parties be restrained from selling, transferring, disposing of, encumbering or otherwise dealing with the V Street property without the prior written consent of the other party.
34.Pending the Wife’s compliance with order 28 and/or the V Street Default Sale, unless otherwise agreeing in writing, the Wife be restrained from entering into a new lease agreement with a lease term longer than 12 months,
The Subordinated Loan
35.In relation to the subordinated loan advanced by the parties to G Pty Ltd of $250,000 (the Loan) the following shall apply:
(a)each party retain a 50% interest in the Loan advanced to G Pty Ltd; and
(b)upon the loan becoming payable by G Pty Ltd, the parties shall each receive $125,000 (or such other amount as agreed between the parties in writing) to be paid in such manner as directed by each of the Husband and the Wife.
36.The Husband shall provide to the Wife via email quarterly Management Accounts for G Pty Ltd within 14 days of the conclusion of each quarter, until the Loan has been repaid.
Indemnities
37.The Wife pay and be solely liable for an indemnify the Husband with respect of any and all liabilities in her sole name including but not limited to:
(a)CGT on the sale of CommSec Shares and Z Finance Investments arising in her sole name; and
(b)any loans or monies or claims of any nature whatsoever to the benefit of Ms AA and Ms BB.
38.The Wife indemnify the Husband and keep him indemnified in relation to any and all liabilities of whatsoever nature and kind and howsoever and whenever arising (past, present or future) in the V Street property.
39.The Husband pay and be solely liable for an indemnify the Wife with respect of any and all liabilities in his sole name including but not limited to:
(a)his CBA Personal Loan accounts ending #...36 and #...22 and #...77; and
(b)all ASIC fees and all accounting fees to U Accountants or such other accountant as appointed by the Husband, to transfer the Wife’s interest in R Pty Ltd and the S Trust.
40.The Husband indemnify the Wife and keep her indemnified in relation to any and all liabilities of whatsoever nature and kind and howsoever and whenever arising (past, present or future):
(a)in the name of G Pty Ltd; and
(b)in the Wife’s name arising from the Wife’s involvement in G Pty Ltd;
(c)in the name of R Pty Ltd;
(d)in the Wife’s name arising from the Wife’s involvement in R Pty Ltd;
(e)in the name of the S Trust;
(f)in the Wife’s name arising from the Wife’s involvement in the S Trust;
(g)in the name of T Pty Ltd; and
(h)in the Wife’s name arising from the Wife’s involvement in T Pty Ltd;
41.the parties retain their own liabilities, in so much as they may exist, as shareholders in CC Pty Ltd (CC Pty Ltd ALSO KNOWN AS DD Pty Ltd).
42.In the event that any taxation liabilities (including but not limited to Capital Gains Tax and/or loans to which Division 7A of the Income Tax Assessment Act 1936 (Cth) applies) attaches to any asset to be retained by either of the parties pursuant to these Orders the party retaining the asset be responsible for such payment and indemnify the other party in relation to the same unless otherwise specified by these orders.
Superannuation – the Wife’s Superannuation Fund 1 (split from Wife to Husband)
43.Pursuant to paragraph 90XT(1)(b) of the Family Law Act 1975, whenever a splitable payment becomes available in respect of MS DANGERFIELD (the Wife) interest in Superannuation Fund 1 (the Fund), the trustee shall pay to MR DANGERFIELD (the Husband) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a specified percentage of 50% and there should be a corresponding reduction in the entitlement of the person to whom a splitable payment would have been made by for these orders.
44.The trustee do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Husband in the immediately preceding clause of this Order;
(b)pay the entitlement whenever the trustee makes a splitable payment from the Wife’s interest in the Fund.
45.That order 43 has effect from the operative time which is four business days after a sealed copy of these Orders has been served upon the Trustee.
46.That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”) the Wife shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Husband’s request in accordance with the SIS Regulations, for the transfer or rollover of the non-member spouse interest.
47.That the Court notes:
(a)the value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b)any payments from the Wife’s superannuation interest in the Fund made after the trustee has created a new interest in the Husband’s name in the Fund are not splitable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
Superannuation – the Husband’s Superannuation Fund 1 (split from Husband to Wife)
48.Pursuant to paragraph 90XT(1)(b) of the Family Law Act 1975, whenever a splitable payment becomes available in respect of MR DANGERFIELD (the Husband) interest in Superannuation Fund 1 (the Fund), the trustee shall pay to MS DANGERFIELD (the Wife) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a specified percentage of 50% and there should be a corresponding reduction in the entitlement of the person to whom a splitable payment would have been made by for these orders.
49.The trustee do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Wife in the immediately preceding clause of this Order;
(b)pay the entitlement whenever the trustee makes a splitable payment from the Husband’s interest in the Fund.
50.That order 48 has effect from the operative time which is four business days after a sealed copy of these Orders has been served upon the Trustee.
51.That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”) the Husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Wife’s request in accordance with the SIS Regulations, for the transfer or rollover of the non-member spouse interest.
52.That the Court notes:
(a)the value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b)any payments from the Husbands superannuation interest in the Fund made after the trustee has created a new interest in the Husband’s name in the Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
Superannuation Fund 2
53.The parties jointly appoint accountant, Mr EE, at joint expense to:
(a)prepare and lodge any outstanding financials for Superannuation Fund 2 (the SMSF);
(b)calculate the parties’ respective member entitlements;
(c)equalise the parties’ respective entitlements, such that each party retain 50% of the total value of the SMSF; and
(d)wind-up the SMSF and roll out the parties’ respective entitlements into a fund of the parties’ choosing and the costs of winding up the SMSF to be met by the fund.
Split of the Husband’s interest in Superannuation Fund 2 (split from Husband to Wife)
54.Pursuant to paragraph 90XT(1)(b) of the Family Law Act 1975, whenever a splitable payment becomes available in respect of MR DANGERFIELD (the Husband) interest in Superannuation Fund 2 (SMSF), the trustee shall pay to MS DANGERFIELD (the Wife) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a specified percentage of 50% and there should be a corresponding reduction in the Husband’s entitlement.
55.The parties jointly appoint accountant, Mr EE, at joint expense to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Wife in the immediately preceding order;
(b)pay the entitlement from Husband’s interest in the SMSF to a fund of the Wife’s choosing.
56.The immediately preceding order has effect from the operative time and the operative time is 21 days from the date of the settlement of the last of the H Street Units.
Split of the Wife’s interest in Superannuation Fund 2 (split from Wife to Husband)
57.Pursuant to paragraph 90XT(1)(b) of the Family Law Act 1975, whenever a splitable payment becomes available in respect of MS DANGERFIELD (the Wife) interest in Superannuation Fund 2 (SMSF), the trustee shall pay to MR DANGERFIELD (the Husband) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a specified percentage of 50% and there should be a corresponding reduction in the Husband’s entitlement.
58.The parties jointly appoint accountant, Mr EE, at joint expense to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Husband in the immediately preceding order;
(b)pay the entitlement from Wife’s interest in the SMSF to a fund of the Husband’s choosing.
59.The immediately preceding order has effect from the operative time and the operative time is 21 days from the date of the settlement of the last of the H Street Units.
Other
60.Unless otherwise provided in these orders and subject to any enforcement proceedings in relation to any obligation pursuant to these orders, the Wife retain all of her right, title and interest in the following:
(a)the V Street Property;
(b)her partial property settlement of:
(i)$150,000 pursuant to Interim Orders dated 23 August 2022; and
(ii)$50,000 pursuant to Interim Orders dated 7 March 2023.
(c)her Motor Vehicle 2;
(d)her interest in CC Pty Ltd/DD Pty Ltd;
(e)all bank accounts in the Wife’s sole name; and
(f)all furniture and chattels in the Wife’s possession.
61.Unless otherwise provided in these orders and subject to any enforcement proceedings in relation to any obligation pursuant to these orders, the Husband retain all of his right title and interest in the following:
(a)the $100,000 retained by the Husband pursuant to the Interim Orders dated 19 July 2021;
(b)his partial property settlement of $50,000 pursuant to Interim Orders dated 7 March 2023;
(c)his Motor Vehicle 3;
(d)his Motor Vehicle 4;
(e)his Motor Vehicle 5;
(f)his trailer;
(g)his box trailer;
(h)his interest in CC Pty Ltd/DD Pty Ltd;
(i)his interest in G Pty Ltd;
(j)his interest in R Pty Ltd;
(k)his interest in the S Trust;
(l)all bank accounts in the Husband’s sole name; and
(m)all furniture and chattels in the Husband’s possession.
62.All previous interim property orders be and are hereby discharged.
All extant parenting and property applications are otherwise dismissed, the trial vacated, and the proceedings be removed from the docket of the Honourable Justice Johns.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dangerfield & Dangerfield has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
The parties in this matter have competing parenting and property applications before the Court. Today I have been presented with a proposed minute of order which will have the effect of finalising those competing applications.
The mother is represented by Counsel. The father represents himself; he had lawyers representing him until July 2022. The father confirmed that he had read and understood the proposed orders sought to be made by the Court. Both Counsel for the mother and the father made submissions in support of the proposed final orders.
The parties’ parenting applications relate to the future care arrangements for the parties’ two children, Y, who is aged nine years and X who is aged 12 years.
Y is in year 4 and making good progress. Y lives with the mother and has been spending time with the father for four nights per fortnight by agreement between the parties.
X, is aged 12 years and is in year 7. X has been assessed as having Autism and ADHD. It is acknowledged by the parties that there are complex issues associated with the management of those conditions.
X’s relationship with the father has fractured. Currently, he spends no time with his father, although they do communicate.
The parties have engaged with therapeutic support with Mr FF, a Clinical Psychologist who is well-known to the Court. It was submitted today that the parties have worked with Mr FF for a period of about a year to try to resolve the challenges in the children’s relationship with their father, particularly in relation to X’s relationship with his father.
The parties have also had the benefit of a Family Report prepared in 2022 by Ms GG. The assistance provided to the parties by both Mr FF and Ms GG has guided them in formulating to proposed consent orders.
The proposed orders provide that the parties continue to have equal shared parental responsibility for the children. That is an important order for the children, because it is a confirmation that each of the parents has an important role to play in the children’s lives in terms of making decisions that affect their long-term care, welfare and development.
In addition to that order, there is a proposed order that the children continue to live with their mother. That is a reflection of what has been the arrangements for the children since the parties’ separation.
Further, it is proposed that there be specific spend time orders for each of the children to spend time and communicate with the father. Y will continue to spend time with her father for four nights a fortnight in a block period from Thursday to Monday, each alternate week. There is also specific provision made for her to continue to communicate with him by telephone, text messages and the like. Additionally, there is specific holiday time provided for in the proposed orders.
As to X, the intention of the orders for spend time is that they be in accordance with X’s wishes. The orders are significant because they leave the door open for X to continue to have a relationship with his father. Although there have been difficulties in that relationship, the father confirmed during his submissions that it is his sincere hope and desire that X will recognise and understand the importance of his father in his world and that, at some time in the future, may seek to reconnect with his father in a real and meaningful way.
Beyond those orders, the parties seek specific provisions that regulate how the parties will communicate with each other around any medical issues that relate to the children and in relation to travel arrangements and the like.
In addition to those orders, I am asked to make orders in relation to child support. It is common ground between the parties that there is a current assessment that regulates the amount of periodic child support to be paid by the father to the mother for the support of the children. In addition to those matters, the parties ask that I make orders pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth) that addresses issues related to school fees, educational expenses, extra-curricular expenses and medical expenses for each of the children. It is the intention of the parties, and it is confirmed in the proposed order, that there will be a sharing of those expenses for the children. I am satisfied that it is just and equitable and otherwise proper that I make such order.
The father made submissions as to his desire to spend regular time with X. In doing so, he recognised and accepted the difficulties in such time occurring at this stage, given X’s views. Nonetheless the father expressed his firm hope that time with X may occur in the future.
Having regard to the submissions made by or on behalf of the parties and to the material before the Court, I am satisfied that the proposed parenting orders are in the children’s best interests. I will make final orders in the terms of the proposed minute.
Turning to property matters, I am presented with a minute of proposed order, the effect of which will be to finalise the parties’ outstanding property claims.
The parties have been engaged in this litigation process for a period of approximately two years and it was submitted that the parties have expended approximately $600,000 on their lawyers. That is tragic in the context of a case where the wife contends that the parties’ asset pool, including superannuation, is valued at approximately $2.6 million and the husband submits that the pool is valued at approximately $3.4 million, including superannuation.
I am not critical of the lawyers that the parties have spent that amount. The lawyers have attended to the work they have been asked to do. Engaging legal representation and conducting proceedings necessarily comes at a cost.
Nonetheless, given the amounts expended these proceedings have come at a significant cost to this family; the parties, who owned their home and had children attending highly regarded private schools prior to these proceedings, now find themselves living in rental accommodation, with their children attending local state schools.
It is to their credit that the parties have found a way to compromise their dispute, so as to avoid incurring further legal costs. The matter was listed to be heard over five days, to commence before me on 29 May 2023.
Both Counsel for the mother and the father agree that the decision that they have taken is a commercial and pragmatic one so as to avoid that trial process.
Trials are costly; not only because of the expenses in engaging lawyers but also as a result of the emotional impact of the conflict upon litigants.
The parties’ relationship is already fractured. These are parties who share two children together. At the conclusion of these proceedings they will have to find a way to conduct respectful, civil relationships with each other and communicate, because that is what is best for their children.
It is evident to me today that these parties recognise that. They have made the decisions they have, and presented the orders, to ensure that they have the best opportunity of continuing to have respectful relationships now and into the future. They are to be congratulated for that.
It was submitted that the adjustment of the parties’ respective pools is somewhere between 59% and 62% of the pool, including superannuation, depending on whose version of the pool one accepts, in favour of the mother.
That adjustment reflects the position where it is common ground that the mother held greater assets at the commencement of the parties’ relationship. In addition, she received some funds from family members, particularly her grandmother, during the course of the relationship. Those funds received by the mother assisted the parties in the acquisition, conservation and improvement of their interests.
It is also common ground between the parties that, in the aftermath of the breakdown of the relationship, the mother realised a share portfolio and applied the proceeds of sale from that portfolio towards the payment of her legal fees. Those funds largely reflect the difference between the parties’ asserted assessments of the value of the pool, it being the father’s contention that those funds ought be added back to the pool. Given the manner in which those moneys were applied, that was a submission likely to have some force had the matter proceeded to trial.
The position of the parties today is that they join in seeking final orders that provide that the father retain the business that was established during the marriage. It was submitted that his income from that business is in the order of approximately $117,000 per annum.
Otherwise the parties seek orders for the sale of their investment properties and splitting of superannuation in the proportions specified.
The wife’s position is that she has re-partnered. She has a young child with her new partner. She is not currently working but is receiving WorkCover benefits. She continues to have responsibility for the primary care of the parties’ two children. It is on that basis that it is agreed between the parties that there ought be an adjustment reflective of those responsibilities.
Having regard to the parties’ material and submissions made I am satisfied that it is just and equitable that orders be made adjusting the parties’ interests. I am satisfied that the proposed orders appropriately and properly reflect the contributions made by each of the parties during the course of their marriage. I am also satisfied that the orders appropriately take into account the relevant section 75(2) factors. Accordingly, I will make orders as sought by the parties.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 19 May 2023
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