FAMILY COURT OF AUSTRALIA
| DUCLOS & DUCLOS | [2019] FamCA 925 |
| FAMILY LAW – PARENTING – Where the parties’ children are aged 10 and 12 – Where the husband seeks to live with the children on a week about basis – Where the wife wants to maintain the interim parenting arrangement whereby the children spend five nights a fortnight with the husband – Where both parties have significantly different parenting styles and attitudes – Where findings are made that on occasions the parties’ communication with each other can be dysfunctional – Where it is found that it is in the best interests of the children to spend five nights a fortnight with the husband. FAMILY LAW – PROPERTY – Where each party seeks a different property settlement order – Where it was agreed that the husband would retain the former matrimonial home in exchange for the payment to the wife of an amount of money – Where determinations were made in respect of how the husband’s current account, Division 7A loans, tax refunds and distributions of the Family Trust should be treated – Where the husband made the major financial contribution – Where the wife made the major nonfinancial contribution – Where the husband has a significantly greater earning capacity than does the wife – Where an adjustment in respect of s 79(4)(d) – (g) considerations was made in the wife’s favour. FAMILY LAW – CHILD SUPPORT – Where the wife seeks both periodic and non-periodic child support payments - Where the wife seeks a final order by way of departure from the administrative assessment for child support that the husband pay her a periodic amount of $500 per week per child – Where the husband seeks that periodic child support be assessed pursuant to the Child Support (Assessment) Act 1989 (Cth) – Where special circumstances are found to exist – Where it is just and equitable and otherwise proper to make the order as sought by the wife – Where the husband and wife are in agreement in respect of the husband paying for the children’s private school fees – Where the husband seeks that the order for child support be made on the condition that he earn over a certain amount each year – Where that condition is not imposed. FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife sought a lump sum, or in the alternative, a weekly payment for a period of 12 months to be paid by the husband – Where the husband resisted the order – Where the husband has the capacity to meet that need – Where the Court finds that the wife has a need, although in a sum less than that sought by the wife – Spousal maintenance made for 12 months. |
| Child Support (Assessment) Act 1989 (Cth) ss 117, 124, 129, 141 Income Tax Assessment Act 1936 (Cth) Part III Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 72, 79 |
| Bondelmonte v Bondelmonte (2016) 259 CLR 662; |
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- AGLC
- DUCLOS & DUCLOS [2019] FamCA 925
- Case
- [2019] FamCA 925
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining the best interests of the children in relation to their living arrangements and time spent with each parent, considering their differing parenting styles and communication issues. The court was required to make determinations regarding the treatment of various financial assets and liabilities for the property settlement, taking into account the parties' financial contributions and earning capacities. Furthermore, the court had to consider whether special circumstances existed to justify a departure from the administrative assessment of child support and to determine the appropriate quantum of periodic and non-periodic child support. Finally, the court needed to assess the wife's need for spousal maintenance and the husband's capacity to meet that need.
In relation to parenting, the court found that equal shared parental responsibility was in the children's best interests, with the children to live with the wife. The court ordered a specific schedule for the children to spend time with the husband, which differed from his initial request for a week-about arrangement, reflecting the finding that five nights a fortnight was in the children's best interests. For property settlement, the court acknowledged the husband's major financial contribution and the wife's major non-financial contribution, along with the husband's greater earning capacity. An adjustment was made in the wife's favour under section 79(4)(d)-(g) of the *Family Law Act 1975* (Cth). Regarding child support, the court found special circumstances existed and ordered the husband to pay $500 per week per child, in addition to all educational and medical expenses, departing from the administrative assessment. Spousal maintenance was ordered for the wife for a period of 12 months, reflecting her need and the husband's capacity to pay.
The court made detailed orders regarding the parenting arrangements, including specific times for the children to spend with each parent during school terms, holidays, birthdays, and other significant dates. Property settlement orders were made, including the husband paying a significant sum to the wife and detailed provisions for the sale of the former matrimonial home if payment was defaulted. The husband was also ordered to indemnify the wife against various liabilities. Child support orders stipulated a weekly payment per child and responsibility for all educational and medical expenses. Finally, spousal maintenance was ordered at $661 per week for 12 months. The court also appointed the Registrar to sign documents if a party refused or neglected to do so.
Orders
Orders of the court
Parenting
1.
The husband and wife have equal shared parental responsibility for the children of the marriage B, born … 2007 and C, born … 2009 (“the children”).
2.
The children shall live with the wife.
3.
The children shall spend time with the husband during school terms each alternate week as follows:
(a) In week 1, from after school Thursday until the commencement of school Monday morning;
(b) In week 2, from after school Thursday until the commencement of school Friday morning; and
(c) Such further or other times as the parties may agree in writing.
4.
Unless otherwise agreed, in the event the children have spent the last part of the holidays with the wife, then the time referred to in Order 3(a) shall recommence in the first week of the new school term and in the event they have spent the last part of the holidays with the husband, then the time referred to in Order 3(b) shall recommence in the second week of the new school term.
5.
During the Terms 1, 2 & 3 school holidays each year, the children will spend one-half of each holiday period with each parent as agreed between the parties but failing agreement as follows:
(a) For holidays in even numbered years, for the first half with the wife and the second half with the husband; and
(b) For holidays in odd numbered years, for the first half with the husband and the second half with the wife.
6.
During the Term 4 Christmas/New Year school holidays each year, the children will spend time with each parent as agreed between the parties but failing agreement, as follows:
(a) For the holiday period commencing in even numbered years:
i. For the first week of gazetted school holidays in December with the husband;
ii. For the remainder of the gazetted school holidays in December with the wife (subject to 9 am Christmas Eve to 9 am Boxing Day as dealt with in Order 7(f) below);
iii. For the first three weeks of the gazetted school holidays in January with the husband; and
iv. For the remainder of the gazetted school holidays in January with the wife.
(b) For the holiday period commencing in odd numbered years:
i. For the first week of gazetted school holidays in December with the wife;
ii. For the remainder of the gazetted school holidays in December with the husband (subject to 9 am Christmas Eve to 9 am Boxing Day as dealt with in Order 7(f) below):
iii. For the first three weeks of the gazetted school holidays in January with the wife; and
iv. For the remainder of the gazetted school holidays in January with the husband.
7.
The arrangements referred to in Orders 2 and 6, herein, be suspended to the extent necessary to enable the children to spend time:
(a) With the wife on Mother’s Day, from 9 am to 6 pm;
(b) With the husband on Father’s Day, from 9 am to 6 pm;
(c) During any Easter period that falls outside school holidays:
i. For Easters in odd numbered years with the wife; and
ii. For Easters in even numbered years with the husband;
(d) On each of the children's birthdays by agreement, or failing agreement, as follows:
i. in the event that the birthday falls on a weekend, then from 9 am until 2 pm with the husband and from 2 pm until 7 pm with the wife in the year 2020 and every second year thereafter, and from 9 am until 2 pm with the wife and from 2 pm until 7 pm with the husband in the year 2021 and every second year thereafter: or
ii. in the event that the birthday falls on a school day, then from after school until 6 pm with the husband and from 6 pm until 8 pm with the wife in the year 2020 and every second year thereafter, and from after school until 6 pm with the wife and from 6 pm until 8 pm with the husband in the year 2021 and every second year thereafter.
(e) With the parties on their birthday:
i. When it falls on a school day, from after school until 9 am the next morning;
ii. When it falls on a non-school day from 9 am to 6 pm; and
iii. Provided that if such birthday falls during school holidays and during a period the children are away from the Sydney metropolitan area with the other party, such time will occur as soon as practicable upon their return.
(f) During the period from 9 am on 24 December until 9 am on 26 December each year, the children spend time with each of the wife and husband as agreed, or failing agreement:
i. With the wife from 9 am on 24 December 2019 until 9 am on 25 December 2019 and the husband from 9 am on 25 December 2019 until 9 am 26 December 2019 and every second year thereafter; and
ii. With the husband from 9 am on 24 December 2020 until 9 am on 25 December 2020 and the wife from 9 am on 25 December 2020 until 9 am on 26 December 2020 and every second year thereafter.
8.
For the purpose of these orders, changeover will occur at the children’s school or as otherwise agreed between the parties in writing, unless the children are not attending school on the day of the changeover in which event changeover will occur with the husband to collect the children from the wife’s residence when the children are to commence living with him, and the wife to collect the children from the husband’s residence when the children are to commence living with her.
9.
Neither party enrol the children in any extra-curricular activity without first liaising with the other parent and taking into account the views of the children in relation to each activity, provided that this order does not apply to the children’s current extra-curricular activities.
10.
Neither party enrol the children in any extra-curricular activity nor engage the children to attend any social or other activity that will occur in the time that the children are with the other parent, without that parent’s consent in writing provided that this order does not apply to the children’s current extra- curricular activities.
11.
Both parties be and are hereby restrained from removing the children from the Commonwealth of Australia without the consent in writing of the other party, with such consent to not be unreasonably withheld, provided that:
(a) The travelling parent provides the non-travelling parent with written notice of their intention to travel with the children not less than four (4) weeks prior to the intended departure from Australia;
(b) The travelling parent provides the non-travelling parent not less than four (4) weeks prior to the children departing Australia, copies of the following documents:
i. A copy of the travel itinerary including details of all travelling passengers and addresses for all places at which they will be staying whilst overseas;
ii. Telephone number/s upon which the children can be contacted whilst overseas;
iii. Copies of the children's return airline tickets; and
iv. Copies of travel insurance covering the children; and
(c) During such times that the children are travelling overseas, the travelling parent shall do all things to facilitate telephone communication between the children and the non-travelling parent no less than twice a week, or at any time that the children request to speak to the non-travelling parent, with the travelling parent to ensure that the children communicate with the non-travelling parent via SMS text message or the like upon their arrival at the overseas destination.
12.
Upon written notice being given by one of the parties to the other that a passport renewal or application is to be made for one or both of the children or a visa or other travel document is required, the wife or the husband shall, within 7 days from the date of receipt of the said notice, sign all necessary passport or other applications and consent forms and provide the children's birth certificates and any other associated documents required.
13.
The children’s passports will be retained by the parent with whom the children most recently travelled overseas.
14.
In the event that a child requests to electronically communicate with the parent they are not living with or spending time with, the other parent is to facilitate that communication.
15.
Neither parent shall denigrate the other party in the presence or hearing of the children nor permit the children to remain in the presence of or hearing of any persons who engage in such conduct.
16.
Each parent will facilitate contact with the other parent when the children are in his/her care with such contact to be in accordance with the children’s wishes and/or at reasonable times requested by the other parent.
17.
Both parties are permitted to attend at the children’s school events, functions and other activities involving parents when the children are not in his/her care.
18.
Both parties are permitted to attend at the children’s extra-curricular training, games, ceremonies and other related social functions even if the children are not in his/her care.
19.
Both parties do all acts and things and sign all documents necessary to authorise any school attended by the children to provide to each parent all particulars of the children’s schooling, including but not limited to, the provision of school reports, notices of the school, photographs, circulars sent to parents, emails sent to parents, notices of school excursions and any other activity of which the child is a participant.
20.
Both parties do all acts and things and sign all documents necessary to authorise any medical practitioner, specialist, orthodontist, psychologist or any other health professional to communicate and provide information to the other parent in relation to the children’s health.
21.
Each parent shall keep the other advised of their current email address and contact telephone number and residential address and shall advise the other of any changes within 48 hours of such a change occurring.
22.
Each parent do all acts and things to advise the other promptly of any medical emergency or significant illness suffered by the children whilst in the party’s care, including provision of sufficient details to enable both parties to be consulted with respect to and fully advised with regard to such illness and any treatment recommended or provided.
Property
23.
Pursuant to s 79 of the Family Law Act 1975 (Cth) a property settlement order be made in the terms of paragraphs 24 to 37 below.
24.
Within 2 months of the date of these Orders, the husband pay direct to the wife, to an account nominated by her, the sum of $2,224,008.
25.
In the event that the husband defaults in the payment referred to in paragraph 24 above, then interest shall run from the due date for payment until the date of actual payment at the rate prescribed by the Family Law Rules and should such default continue for a further period of 1 month, then the husband shall do all acts and things and execute all documents, instruments and writings necessary to effect a sale of the property situated at and known as U Street, Suburb F (“the Suburb F property”) for a price to be nominated by the wife, with the proceeds of sale to be disbursed in the following manner and priority, namely:
(a) In payment of the agent’s commission and legal expenses on the sale;
(b) In payment of the amount required to discharge the existing mortgage to Westpac Bank (save the husband to pay any amount by which the mortgage exceeds $2,028,376); and
(c) Payment of the balance to the wife (subject to paragraph 26).
26.
In the event that the Suburb F property sells for more than $3,000,000, any increase will be divided 58 per cent to the wife and 42 per cent to the husband. In the event that the Suburb F property sells for less than $3,000,000 the wife will bear 58 per cent of the shortfall and the husband will be required to pay the wife the amount referred to in paragraph 27 which is reduced by 58 per cent of the shortfall.
27.
In the event that there is a sale under paragraph 25, then the husband shall still be liable to pay the wife the sum of $1,252,384 in lieu of the amount referred to in paragraph 24 together with interest in accordance with the Family Law Rules and the wife shall have liberty to apply on 7 days’ notice to enforce this paragraph.
28.
The sale, as referred to in paragraph 25 above, shall be on terms nominated by the wife, including a solicitor and agent nominated by the wife and the husband shall give vacant possession of the Suburb F property to enable the completion of the sale.
29.
The husband indemnify and keep indemnified the wife from and against all actions, claims, suits or demands howsoever made against the wife in relation to or arising out of the following:
(a) AA Pty Limited and/or the Duclos Family Trust and/or Duclos Super Pty Ltd and/or the Family Superannuation Fund and/or the P Firm Trust and/or the P Firm Practice Trust and/or Duclos Pty Ltd and/or the Provident Fund;
(b) Any liability being taxation or otherwise of the wife in relation to or arising out of any distributions or alleged distributions to the wife from the Duclos Family Trust and/or the P Firm Trust and/or the P Firm Practice Trust and/or any entity as described in paragraph 29(a) above;
(c) Any liability to Westpac Banking Corporation in relation to a Westpac Business Loan and/or ANZ Banking Group in relation to a loan for the P Firm Capital Contribution;
(d) The husband's Q Project;
(e) Any liability to the husband's children G and H; and
(f) The Suburb F property.
30.
Simultaneously with the payment referred to in paragraph 24 herein, the wife will repay to the husband the sum of $852.50, being one-half of the updated valuations paid by the husband in the first instance in accordance with Orders dated 30 January 2019.
31.
Simultaneously with the payment referred to in paragraph 24:
(a) The wife do all acts and things and sign all documents necessary to transfer to the husband her share in the company known as Duclos Super Pty Ltd and to resign from any office held in that company; and
(b) The wife do all acts and things and sign all documents necessary to transfer to the husband all her shares in the company known as AA Pty Ltd, and to resign from any office held in that company.
32.
Within 14 days of the date of order, the parties cause the Westpac account ended …63 to be closed, and the proceeds distributed to the wife.
33.
Within 14 days of the date of order, the husband will make available to the wife all videos which include the children and/or the wife taken during the relationship, on the following basis:
(a) The husband will provide to the wife any videos he does not wish to retain, clearly labelled to indicate the wife may retain them; and
(b) The husband will make available to the wife all videos in his possession that he wishes to retain and the wife will obtain copies of any of those videos selected by her, at her cost and will return such hard copies within a further 14 days.
34.
As between the parties the wife will retain the following:
(a) Proceeds of bank accounts in her name;
(b) The motor vehicle in her possession;
(c) Furniture, furnishings and personalty in her possession; and
(d) Superannuation entitlements in her name.
35.
Except as otherwise provided in these orders as between the parties the husband will retain the following:
(a) The Suburb F property;
(b) Proceeds of bank accounts in his name;
(c) The motor vehicle in his possession;
(d) His interest in AA Pty Ltd, the Duclos Family Trust, Duclos Super Pty Ltd, the Family Superannuation Fund, the P Firm Practice Trust, Duclos Pty Ltd and the Provident Fund;
(e) His interest in the P Firm Capital Account;
(f) His interest in the Q Project;
(g) Furniture, furnishings and personalty in his possession; and
(h) Superannuation entitlements in his name.
36.
Other than as specifically dealt with herein the wife be declared the sole owner of all items of furniture, property, effects and superannuation in her name possession, custody or control.
37.
Other than as specifically dealt with herein the husband be the sole owner of all items of furniture, property, effects and superannuation in his name possession, custody or control.
Child support
38.
There be a departure from the Administrative Assessment for Child Support payable by the husband to the wife for the children, and that the husband pay to the wife the sum of $500 per week per child, payable fortnightly with the first payment to be made on the first Monday after the date of these Orders and thereafter payable each fortnight;
39.
By way of non-periodic child support, the husband pay:
(a) All educational expenses for the children at D School, or such other schools as agreed between the parties, including such fees to include all tuition fees, excursion fees, sports, clubs, books, uniforms and extra-curricular activities; and
(b) Medical benefits cover at the top rate to cover the children together with any gap expenses and all medical, dental, optical, orthodontic, hospital, pharmaceutical, physiotherapy, podiatry, chiropractic and other medical expenses not covered by the private health insurance.
40.
The child support payable by the husband pursuant to Orders 37 and 38 above is to account for 100 per cent of the annual rate of child support payable by him under any administrative assessment of child support to the wife for the period from the date of the making of these Orders until the happening of a child support terminating event in respect of each child.
Spousal maintenance
41.
The husband pay to the wife by way of spousal maintenance the sum of $661 per week for a period of 12 months from the date of these orders.
Section 106A of the Act
42.
In the event either party refuses or neglects to sign any deed or instrument to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act to sign such document on behalf of such party to give effect to the operation of the deed or instrument.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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