FAMILY COURT OF AUSTRALIA
| FADEN & FADEN | [2014] FamCA 1182 |
| FAMILY LAW – CHILDREN – Best interests – Where there are four children of the marriage – Where there is significant hostility and distrust between the parents – Where the two older children have expressed a wish to live with the father – Orders made for each of the parents to exercise sole parental responsibility in relation to two of the four children – Orders made for the two older children to live with the father and the two younger children to live with the mother. FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE –Where the parties cohabited for 13 years – Where there are four children of the marriage – Where the father earned a greater income during the marriage and the mother undertook most of the home-making duties and care of the children – Where the mother made substantial financial contributions through an inheritance received prior to and after separation – Contributions assessed at 73 per cent to the mother and 27 per cent to the father – Adjustment of 2 per cent in favour of the mother to take into account the father’s higher income and the mother’s lack of employment and health problems – Orders made with the agreement of the parties that part of the mother’s entitlements be realised through the mother retaining 100 per cent of the parties’ superannuation. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 69ZT, 75, 79, 90MT |
| Ferraro and Ferraro (1993) FLC 92-335 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 McLay and McLay (1996) FLC 92-667 Stanford v Stanford [2012] HCA 52; (2012) 293 ALR 70 |
| APPLICANT: | Mr Faden |
| RESPONDENT: | Ms Faden |
| INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW Sydney Central Family Law |
| FILE NUMBER: | (P) SYC 2007 | 8240 | of |
| DATE DELIVERED: | 19 December 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 13, 14, 15, November 2013, 12, 13,14, 15, 16, 19 May 2014, 4 August 2014, 13, 21 November 2014, 8 – 9 December 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell (13/11/13-11 December 2013) Self Represented |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan (13/11/13-11 December 2013) Self Represented |
COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER: Mr Wong
Orders
parenting
Mr Faden (“the father”) is to have sole parental responsibility for the two children E Faden born … 1999 (“E”) and F Faden born … 2001 (“F”) (“the children”).
The children E and F live with the father.
Before making any decisions relating to long term aspects of the welfare of E and F the father is to send the mother an email outlining the matter which he needs to decide and setting out what his proposals are. The mother is to respond within seven days and the father is to take into account what the mother has said and…
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- AGLC
- FADEN & FADEN [2014] FamCA 1182
- Case
- [2014] FamCA 1182
- Decision Date
CaseChat Overview and Summary
The court was required to determine orders for the children's living arrangements, parental responsibility, and time spent with each parent, with a primary consideration being the best interests of the children. In relation to property, the court needed to assess the contributions of each party to the marriage and determine an equitable distribution of their assets, including the former matrimonial home and various business interests, as well as superannuation entitlements.
Regarding parenting, the court made orders for each parent to exercise sole parental responsibility for two of the four children, with the two older children to live with the father and the two younger children to live with the mother. Specific provisions were made for communication between parents regarding long-term welfare decisions for the children, and for the children to spend time with the non-resident parent, with particular attention paid to the children's views as they attained the age of 14. In the property settlement, the court assessed the contributions at 73 per cent to the mother and 27 per cent to the father, making a further adjustment of 2 per cent in favour of the mother to account for the father's higher income and the mother's health and employment circumstances. The parties agreed that the mother would retain 100 per cent of the parties' superannuation entitlements. The court also made detailed orders regarding the transfer of the former matrimonial home to the mother, the sale of business shares, the discharge of liabilities, and the division of proceeds, with the intention that the mother would have no further interest in certain trusts and companies, and the father would retain remaining interests.
Orders
Orders of the court
parenting
1.
Mr Faden (“the father”) is to have sole parental responsibility for the two children E Faden born … 1999 (“E”) and F Faden born … 2001 (“F”) (“the children”).
2.
The children E and F live with the father.
3.
Before making any decisions relating to long term aspects of the welfare of E and F the father is to send the mother an email outlining the matter which he needs to decide and setting out what his proposals are. The mother is to respond within seven days and the father is to take into account what the mother has said and then inform her of his decision by email no later than 24 hours after making the decision.
4.
Ms Faden (“the mother”) is to have sole parental responsibility for the two children G Faden born … 2003 (“G”) and D Faden born … 2005 (“D”).
5.
The children G and D live with the mother.
6.
Before making any decisions relating to long term aspects of the welfare of G and D the mother is to send the father an email outlining the matter which she needs to decide and setting out what her proposals are. The father is to respond within seven days and the mother is to take into account what the father has said and then inform him of her decision by email no later than 24 hours after making the decision.
7.
The children E and F spend time with the mother during school terms each alternate weekend from after school Friday until 7 pm Sunday. The mother is to return the children to the father’s residence on Sunday evening. The first such time to commence the Friday 5 December 2014.
8.
Both parents are to respect and implement E’s views in relation to the time he spends with them and likewise they are to respect and implement the views of each of the children, about the time they each spend with each parent, once the child has attained the age of 14 years.
9.
Each parent is to use their best endeavours to ensure that each child maintains the best relationship possible with the other parent.
10.
The children G and D spend time with the father during school term time five nights per fortnight continuing the sequence in the same manner as the orders operating immediately before these orders required. (It is noted the orders of 6 January 2010 are the operative orders immediately before the making of these orders.) I note the father’s next time will commence on Wednesday 26 November 2014.
11.
The parents are to ensure that the times the children spend with each parent are to coincide so that the children are together each weekend in one parents house or the other.
12.
The children E, F, G and D spend time with the parents during the school holidays as follows:
(a)
(i) for the first half of the school holidays in 2014 with the mother and the second-half with the father and in each alternate year thereafter; and
(ii) for the first half of the school holidays in 2015 with the father and the second-half with the mother and in each alternate year thereafter.
(b) for such other and further periods as may be agreed between the parties from time to time.
13.
Following any school holiday period the time spent by the children with each parent during school term is to resume by calculating the next weekend time for a parent to commence as if there had not been any school holiday time at all and that the sequencing had continued through that period.
14.
That irrespective of any order to the contrary, the children are to spend time with each party during Christmas as follows:
(a) with the father from 12:30 pm Christmas Eve until 12:30 pm Christmas day in even numbered years and from 12:30 pm Christmas Day until 12:30 pm Boxing day in odd numbered years;
(b) with the mother from 12:30 pm Christmas Eve until 12:30 pm Christmas day in odd numbered years and from 12:30 pm Christmas Day until 12:30 pm Boxing day in even numbered years.
15.
That irrespective of any order to the contrary, the children are to spend time with each party during the Easter long weekend as follows:
(a) The children are to spend time with the father:
(i) from 9.00 am Friday to Sunday 3.00 pm of the Easter long weekend in each even numbered year; and
(ii) from 3.00 pm Sunday of the Easter long weekend to 9.00 am Tuesday after the Easter long weekend in each odd numbered year.
(b) The children are to spend time with the mother:
(i) from 9.00 am Friday to Sunday 3.00 pm of the Easter long weekend in each odd numbered year; and
(ii) from 3.00 pm Sunday of the Easter long weekend to 9.00 am Tuesday after the Easter long weekend in each even numbered year.
16.
That irrespective of any order to the contrary herein, in the event that the children are not spending time with the mother in accordance with these orders on Mother’s Day, then the time the children are spending with the father in accordance with these orders shall conclude at 9.00 am on Mother’s Day until school time on Monday.
17.
That irrespective of any order to the contrary herein, in the event that the children not spending time with the father in accordance with these orders on Father’s Day, then the time the children are living with the mother in accordance with these orders shall conclude at 9.00 am on Father’s Day until commencement of school.
18.
Each parent is to be responsible for the day-to-day care of the children whilst they are in that parents care, including such matters as involvement in extra-curricular activities.
19.
The parent who has sole parental responsibility for a child is to arrange such extra-curricular activities for the child as that parent sees appropriate. Having made such a decision, details of the involvement of the child in the extra-curricular activity is to be provided forthwith to the other parent by email including the time and place that child may be required to participate in that extra-curricular activity whilst in the other parent’s care. The decision as to whether the child does participate in such activity whilst in the care of the parent who does not have sole parental responsibility for the child is to be entirely that parent’s decision.
20.
In the event that changeover does not occur at the children’s respective schools and in circumstances where these orders do not specifically state otherwise, then the parent who is to commence time with the children is to collect them from the other parent’s residence.
21.
Each party shall immediately notify the other if any of the children becomes seriously ill or has or is to be admitted into hospital.
22.
Each parent is to inform the other of any prescription of medicine the children are required to take in the informing parent’s house and where necessary ensure the medication is provided to the other parent.
23.
Each parent is to ensure all professionals carrying out any diagnosis or treatment or therapy on any of the children specified in these orders are authorised to provide information to the other parent upon request from that parent.
24.
Each parent is to authorise the school authorities for the children who are the subject of their sole parental responsibility order to provide to the other parent copies of all school reports and correspondence provided by the school together with the provision of information sought by the other parent. Each parent is to ensure, as best they can, the details of the other parent are provided to and included in the child’s school records.
25.
Each of the parents is to do all such things as may be necessary so as to ensure the continued attendance of the children upon Dr BB, or any other professional recommended by her, at such times and at such places recommended by her, for not less than 12 months from date of these orders.
26.
That the costs of the children’s attendance upon Dr BB, or any other health professional recommended by her, be met in equal shares.
27.
The mother and the father are hereby authorised to release the following documents to any treating psychologist and/or psychiatrist retained by either of them for themselves of the children:
(a) The Expert Reports prepared by Dr KK for the proceedings; and
(b) Any judgment of this honourable Court.
28.
Each parent is granted permission to publish to any school a subject child may attend, any hospital a subject child may attend for treatment; any medical practitioner which a subject child may attend upon for assessment or treatment and to any other relevant authority, a copy of these orders.
29.
Each parent may show a copy of these orders and the reasons for the making of same to their spouse/full time partner.
30.
Each parent is to seek assistance from a professional qualified in protective behaviours relative to children to provide advice to assist the parents in ensuring the children are not exposed to pornographic or inappropriate materials via electronic visual display or communication devices whilst in the care of a parent.
31.
Each parent is to ensure the children are not exposed to any derogatory statements being made about the other parent or that parents spouse or full time partner.
32.
Independent Children's Lawyer to explain orders to the children.
33.
The appointment of the Independent Children's Lawyer is to continue for a period of six months from the date hereof.
34.
Unless the timing and source of payment are varied by the Court when it makes the final property orders herein the mother and father pay the costs of the Independent Children’s Lawyer by payment to Legal Aid NSW within 12 months from the date hereof as follows:
(a) the father to pay the sum of $11,764.23 and
(b) the mother to pay the sum of $13,414.23.
35.
The parties may vary any of the orders made herein by consent where they agree in writing as to the terms of a replacement order. Email exchange showing clear consensus will suffice to effect a variation of an order.
36.
In the event of any further parenting dispute and before either party files a parenting application in the Court, the parties are to seek the assistance of a Dispute Resolution Practitioner.
37.
In the event that a particular problem arises in relation to the time any child spends with a parent pursuant to these orders the parties are to seek the assistance of Dr BB and upon obtaining a recommendation from her in relation to the particular problem the parties are to implement that recommendation.
38.
The Court notes the parties agree that each may take the children on a holiday outside Australia during the time the children are in their care during school holidays or at such other time as the parties may agree in writing (email exchange is sufficient).
39.
Whenever a parent is proposing to take the children for a holiday outside Australia that parent is to give the other not less than six weeks’ notice of such proposal. Details of the proposed holiday are to be provided including copies of E-tickets showing the air travel involved and details of the accommodation the children will be housed in during the holiday. Whenever a parent receives such notice of an intended holiday trip outside Australia that parent is to deliver to the parent accompanying the children on that holiday (no later than 21 days before same) the passports for the children who will be attending and whose passports are held by that parent. Upon return from the trip the other parent is to return the passports within seven days of arrival in Australia.
40.
Each parent is to be responsible for obtaining and keeping current the passports for the children for whom they hold a sole parental responsibility order. Each parent is to ensure they hold current passports for the children in their sole parental responsibility by the end of December 2014.
41.
In the event of either parent being told by one of the children directly, or by another person, of a serious allegation made by the child against the other parent or a member of that parent’s household, then the subject parent is to refer the matter to Dr BB and seek her recommendation before contacting any authority unless the circumstance is so urgent that it requires another action.
42.
These are final parenting orders and consequently all outstanding applications or responses seeking a parenting order are dismissed.
property
43.
The father is to forthwith sign and return to the mother a transfer document which she provides, such document being required to cause the transfer of his right, title and interest in the property at H Street, Town J in the state of New South Wales, being the whole of the land contained in Folio Identifier … (“the former matrimonial home”) to the mother, subject to the existing encumbrance.
44.
The mother is to hereafter indemnify the father and keep him indemnified against any liability he may have pursuant to the mortgages secured against the former matrimonial home and being described as Westpac Rocket Repay Home Loan, Westpac Rocket Equity Loan 1 and Westpac Rocket Equity Loan 2. She is to further indemnify him against any claim made against him arising from his former ownership with the mother of the former matrimonial home.
45.
Within a period of three months of the receipt by the mother of her share of the proceeds of the sale of the shares held by the Faden Family Trust and K Pty Ltd in N Associates Pty Ltd the mother is to cause the father’s liability under the mortgages registered against the title of the former matrimonial home (as specified in the previous order) to be discharged or alternatively do all necessary to sell the property and discharge the mortgages.
46.
The father and the mother are to use their best endeavours to jointly sell, for the best available price, the shares held by K Pty Ltd and the Faden Family Trust in the company N Associates Pty Ltd within a period of 90 days from the date hereof or such longer period as they may thereafter agree to in writing (email exchange is sufficient). In the event that they have not been able to effect a sale of all of the shares held in N Associates Pty Ltd by K Pty Ltd and/or the Faden Family Trust by the expiration of the said 90 day period or further agreed extension, then they are to jointly appoint a trustee for sale of all the remaining shares for the best obtainable market price which can be achieved within a period of six months from the date of the appointment of the trustee for sale.
47.
For the purpose of the preceding order the father and mother are to agree upon the identity of the trustee for sale and the terms of his/her appointment. If they are unable to do so then they are to appoint Ms DG, the single expert appointed jointly for the property determination, and should she decline the appointment then they are to appoint the president for the time being of the Institute of Chartered Accountants in Australia to nominate a chartered accountant to act as the trustee for sale and to specify the remuneration for that trustee.
48.
Upon a sale of the shares in N Associates Pty Ltd being completed by both the Faden Family Trust and K Pty Ltd the sale proceeds are to be applied as follows:
(a) Payment of the costs of the trustee for sale, if necessary. Any payment to be made firstly from the proceeds of sale received by the Faden Family Trust.
(b) Any other cost incurred by the sale (to be paid from the proceeds received by the Faden Family Trust).
(c) The parties are to jointly appoint (and pay from the proceeds of sale of the N Associates Pty Ltd shares received by the Faden Family Trust) JK Financial Group and EE Financial Pty Ltd (“the accountants”) to jointly calculate the company, capital gains and personal taxation to be paid by each of the parties, the Faden Family Trust and K Pty Ltd arising from the sale of the shares in N Associates Pty Ltd as specified in these orders together with any taxation liability arising from any adjustment or extinguishment of any loan account held by each party or by either entity. In calculating the taxation payable by each of the mother and father the accountants are to have regard to the percentage division of the net proceeds of the sale of the shares as is provided for in this order.
(d) For the purpose of calculating the tax liability of either party or the Faden Family Trust or K Pty Ltd arising from these orders the father is to have the option of either taking over the mother’s loan account in K Pty Ltd and/or the Faden Family Trust or alternatively discharging those loan accounts so that the mother has no liability to the company, the trust or to the father arising from such transaction. Further the father is to indemnify the mother against any claim by K Pty Ltd or the Faden Family Trust against the mother in relation to any prior transaction which the company may have had with her. Further the mother is to transfer to the father her loan account/asset in the Faden Family Trust at the election of the father. In any event the mother is to relinquish/forgive or transfer to the father her entitlement in the Faden Family Trust upon receipt of her share of the net sale proceeds of the trust’s interest in N Associates Pty Ltd subject to the taxation incurred by the sale being met, as provided for in these orders.
(e) Discharge of the parties’ liability to the Macquarie Bank for loan facility …40 being for a limit of $533,000 and being contained in two accounts numbered …785 and …456. This is to be paid first from the proceeds of sale of the shares sold by the Faden Family Trust and if any balance is still owing thereafter it is to be paid from the sale of shares by K Pty Ltd.
(f) Payment of the taxation determined as provided for in these orders (the tax to be paid is to come from the sale proceeds of the entity to which the tax is primarily generated from if there be sufficient funds available in that entity, otherwise from sale proceeds available in the remaining entity).
(g) Should it not be possible at the time the funds are available for distribution from the sale of the shares in N Associates Pty Ltd to calculate any of the tax amounts required to be calculated and paid pursuant to the above orders, the parties are to instruct JK Financial Group and EE Financial Pty Ltd to estimate the amount of tax which could be payable and that sum is to be retained in an interest bearing deposit, held in the joint names of the parties, pending the completion of the work necessary to calculate the tax payments required.
(h) The funds remaining, if any, in the Faden Family Trust arising from the sale of the N Associates Pty Ltd shares is to be divided equally between the parties.
(i) The parties are to cause the proceeds of the sale of shares by K Pty Ltd to divided 70 per cent to the mother and 30 per cent to the father provided such percentages relate to a net payment to each of the parties following the payment of all taxes which are incurred arising from both the sale of the shares in N Associates Pty Ltd by both the Faden Family Trust and K Pty Ltd, the discharge or transfer of all loan accounts either party might owe to either the Faden Family Trust or to K Pty Ltd (i.e. personal tax liability) and the receipt into their hands of a net amount (i.e. capital gains tax).
49.
Note: It is the intention of the Court that these orders create a circumstance where the mother will have no interest in or liability to the Faden Family Trust and K Pty Ltd once the interests of those entities in N Associates Pty Ltd have been sold and distributed pursuant to these orders. The orders will also leave with the father all of the parties remaining interests (if any) in the Faden Family Trust and K Pty Ltd. It is further the intent of the Court that all taxation liabilities of K Pty Ltd, the Faden Family Trust and each party, created directly as a result of implementing these orders, is to be paid from the proceeds of the sale of the shares. That is to include capital gains tax, whether arising in either entity or for the parties personally together with any taxation incurred as a result of adjusting or extinguishing loan accounts in the entities where that is necessary. To the extent that the orders ultimately do not achieve the stated intention either party has leave to seek any further orders necessary to achieve that end.
50.
Upon the orders of the Court relative to the sale of the shares held by the Faden Family Trust and K Pty Ltd being completed the father is declared the absolute owner of all of the parties’ remaining interests in the Faden Family Trust and K Pty Ltd. To that end the mother is to transfer to the father all her shareholding in the trustee of the Faden Family Trust, namely M Pty Ltd. The father is to thereafter indemnify the mother against any claims made against her arising from her former shareholding in M Pty Ltd or any office holding in that company. The father is also to indemnify the mother against any claims made against her arising from her former association, transactions or dealings with K Pty Ltd.
51.
In the event that the amount received from the sale of the shares held by the Faden Family Trust and K Pty Ltd in N Associates Pty Ltd is insufficient to meet the expenses of sale or the liability to Macquarie Bank then the parties are to forthwith equally pay the remaining expenses or liability to Macquarie Bank.
52.
Pending the payment to the mother of her entitlement from the sale of the shares held by K Pty Ltd and the Faden Family Trust in N Associates Pty Ltd the order made by the Court on 11 December 2013 requiring the father to pay to the mother the sum of $1,500 per fortnight is to continue.
53.
The Court notes the mother is the absolute owner of the remaining interest the parties had formerly held in the property located at Town Y.
54.
The father is to sign (and forthwith return to the mother) any document delivered to him by the mother as may be necessary to transfer to the mother all and any shareholding or entitlement he may have in the company BD Pty Ltd. The mother is to indemnify the father against any claims made against him arising from his former ownership of shareholding or interest in that company.
55.
Pursuant to s 90MT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) the father and mother and the directors of HH Pty Ltd, as trustee of the X Superannuation Fund, do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes payable to the father from his interest in the X Superannuation Fund 100 per cent of the splittable payment of the father be credited to the mother and that there be a corresponding reduction of the entitlement the father.
56.
The father is to sign all documents presented to him by the mother as may be required to transfer to the mother all his shareholding in the trustee of the X Superannuation Fund, namely HH Pty Ltd and at the time of executing such documents resign all offices held by him in the trustee company.
57.
Otherwise than as ordered herein each of the parties is declared the absolute owner, as against the other of the property both real and personal (including any superannuation entitlement) standing in their sole name or in their name with another not being the other party to this proceeding.
58.
Each party has leave to relist the matter should it be necessary to seek further orders to enable the implementation of these orders.
59.
All outstanding applications are otherwise dismissed.
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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