Fedele and Fedele

[2008] FamCA 836

FAMILY COURT OF AUSTRALIA

FEDELE & FEDELE [2008] FamCA 836

FAMILY LAW – PROPERTY – Consent orders - S79(2) of the act

Family Law Act 1975 (Cth)

APPLICANT: MS FEDELE

RESPONDENT: MR FEDELE

FILE NUMBER: MLC 5195 of 2007

DATE DELIVERED: 30 SEPTEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 30 SEPTEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MEEHAN

SOLICITOR FOR THE APPLICANT: R & G LAWYERS

COUNSEL FOR THE RESPONDENT: MS SMALLWOOD

SOLICITOR FOR THE RESPONDENT: PEARSONS

ORDERS

IT IS ORDERED BY CONSENT:

PROPERTY

1. THAT paragraph 1 of the Order made by this Court on the 21st day of February 2008 be discharged upon payment by the husband pursuant to Order 3 or 5 herein of the sum due to the wife.

2. (a) THAT this is an order to which Section 77A of the Family Law Act 1975 applies;

   (b)the amount of $100,000 of the monies ordered to be paid to the wife or of the value of the property to be transferred to the wife is attributable to the provision of maintenance for the wife.

3. THAT the husband pay to the wife the sum of $750,000 ("the payment") on or before the 30th day of December 2008 ("the date").

4. THAT contemporaneously with the payment:

   (a)the wife deliver a discharge of caveat in registrable form to the husband with respect to the caveat lodged on property C.

   (b)the husband indemnify the wife against all payments and liability pursuant to the mortgage registered by Macquarie Bank ("the mortgage") and all apportionable rates, taxes, and outgoings of or with respect to the real property of whatsoever nature and kind and refinance the mortgage to release the wife from all liability thereunder.

5. THAT in the event the whole of the payment has not been made by the date the real property be forthwith sold altogether out of Court ("the sale") and upon completion of the sale, the proceeds of the sale be applied:

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

   (b)secondly to discharge the mortgage and any other encumbrance affecting the real property;

   (c)thirdly so much of the payment as is then outstanding together with interest thereon at the penalty interest rate per annum adjusted monthly from the date to the wife;

   (d)         fourthly the balance to the husband.

6. THAT pending the payment or completion of the sale:

   (a)the husband have the sole right to occupy the real property and that during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

   (b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and

   (c)neither party encumber the real property without the consent in writing of the other party save for the purpose of compliance with these orders as to the payment.

7. THAT contemporaneously with the payment the husband forthwith do all necessary acts and things and sign all necessary documents to transfer to the wife at the expense of the wife the Honda CRV motor vehicle.

8. THAT the husband be liable for and indemnify the wife against all payments in respect of the recreational loan.

9. THAT the wife forthwith sign all documents and do all things required to resign from any office she may hold in M Pty Ltd ("the company") and transfer any shares she may hold to the husband or his nominee at the expense of the husband and the husband retain all assets of the company for his sole use and benefit.

10. THAT the husband be responsible for and indemnify the wife with respect to all debts including taxation liabilities arising from or associated with the operation of the company.

11. THAT the husband and the wife each sign all documents and do all things necessary to effect a division of the "[Fedele] Superannuation Fund" so as to provide a benefit to the wife in the total sum of $50,000 and the remainder to be retained for the benefit of the husband and such benefits be rolled or retained in superannuation funds of the parties respective nomination.

12. THAT unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

    (a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the husband save that the wife be entitled to collect from the property within twenty-one (21) days her gas kiln and the Balinese batik.

    (b)insurance policies remain the sole property of the owner.

    (c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

PARENTING

1. THAT the previous children's Orders of the 28th May 2007 be discharged.

2. THAT the husband and the wife have shared equal responsibility for the major long term issues concerning the children of the marriage:

   T born … December 1999; and

   G born … November 2002.

3. THAT the husband and the wife share equal responsibility for the day to day care, welfare and development of the children.

4. THAT the children live with the husband and the wife in a two (2) week cycle as follows:

   (a)in the first week of the two week cycle with the husband each Wednesday evening from the conclusion of school (or after-school care) until Friday morning at the commencement of school.

   (b)in the second week of the two week cycle with the husband each Wednesday evening from the conclusion of school (or after-school care) until Monday morning at the commencement of school.

   (c)with the wife at all other times.

   (d)that during each of the school holidays the children will spend the second week of the term holidays with the husband in the year 2007 and the first week of the term holidays with the husband in the year 2008 and alternating each year thereafter.

   (e)on the children's birthdays and either of the parents birthdays with the parent who would not otherwise have the children from 5.30 p.m. to 7.30 p.m. on a school day and for three (3) hours as agreed on a non-school day.

   (f)during the long summer holidays week about, such weeks to be structured so that Christmas Eve falls alternately to each parent with the children to spend from 3.30 p.m. Christmas Day to 3.30 p.m. Boxing Day with the parent with whom they have not spent Christmas Eve and the wife have Christmas Eve 2008.

   (g)Mothers Day - In the event that Mother's Day falls on a weekend when the children are with the husband, the husband deliver the children to the wife at 9.00 a.m. and collect them at 5.00 p.m.

   (h)Father's Day - in the event that the children are with the wife on Father’s Day, the wife deliver the children to the husband at 9.00 a.m. on Father’s Day and collect them at 5.00 p.m.

   (i)each of the parties will facilitate reasonable telephone contact between the children and the other parent.

5. THAT in the event that either of the parties is unable to care for the children at the agreed times, or require an alteration to collection and delivery of the children, then each of the parents give the other first option of caring for the children during that time before engaging any other carer.

6. THAT in the event that either of the parties is unable to care for the children at their agreed time and the other parent is unable to assist in caring for the children during that time then the cost of a carer will be the responsibility of the parent with whom the children would have been scheduled to be with at that time.

7. THAT any alterations to the arrangements regarding the children pursuant to these orders be by agreement and adequate written notice will be given by either of the parties in the event that a change of the arrangements is required.

8. THAT the parties provide one another with their address and telephone number at all times and provide at least seven (7) days notice before there is an alteration to a telephone number or an address.

9. THAT both of the parties will keep one another informed of all medical information regarding the children.

10. THAT the wife and husband are not to vary the children's arrangements by including new extra-curricular activities without obtaining the consent of the other first.

11. THAT all extant applications be otherwise dismissed.

12. PURSUANT to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

IT IS DIRECTED

1. THAT all property maintenance issues be removed from the Pending Cases List.

2. THAT the Minutes of Consent Orders remain on the Court file.

THE COURT NOTES

1. THAT the parties intend these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

IT IS NOTED that publication of this judgment under the pseudonym Fedele  & Fedele is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5195 of 2007

MS FEDELE

Applicant

And

MR FEDELE

Respondent

REASONS FOR JUDGMENT

1. The matter of Fedele is listed before me for mention.  It is a matter that is in my Judicial Docket.  The issues in this case are both children and parenting and also property and financial matters.  Ms Smallwood of counsel appears for the husband.  Mr Meehan of counsel appears for the wife.  Neither instructing solicitor was at court. 

2. The background to this matter is that the parties recently attended a Financial Conciliation Conference which was unsuccessful.  There was a draft balance sheet available and the total asset pool was between 2.3 million or thereabouts and 2.45 million or thereabouts.  The principal dispute was the value of the professional practice.

3. The matter was mentioned to me on the basis that the parties wished time to negotiate a final settlement out of court.  As a result of meaningful discussions, all issues - that is, both of and related to the children and the property and financial aspects of this case - have been resolved. 

4. I have now presented to me minutes of consent orders.  The children's orders are proper and with the constructive relationship that these parties have as to their children I have no hesitation in making those orders by consent.

5. As to the financial matters, the effect of the order is that the wife is to cease her spousal maintenance payments upon receipt of a sum of $750,000.  The payment date is the end of this calendar year and there are default interest provisions and, if necessary, enforcement orders. Additionally, there is a superannuation splitting order to the benefit of $50,000 to the wife, with the husband otherwise retaining all superannuation. 

6. The husband is the sole registered owner of the property at C.  He will retain that property.  The wife must uplift the caveat at her expense upon payment of the moneys, and thereafter the wife has no claim as against that property.  Likewise, the husband will retain the property from which the professional practice is conducted.  He, being the professional, will retain that practice. 

7. There are substantial mortgages against the home and the dental practice building, and they are the responsibility of the husband.  There are appropriate indemnities provided in relation to tax and other debts and that would seem to be appropriate.  There is otherwise a division of chattels and the wife is to have a motor vehicle without debt.

8. These orders were negotiated with the parties looking to the prospects of a defended hearing next year and outlaying moneys on valuation, reports and, of course, the legal proceedings themselves. I am satisfied that both the husband and wife understand that the property and financial orders are final.  There are experienced barristers both appearing for and advising the clients today. 

9. This clearly is a legal and pragmatic commercial outcome.  By taking a cash settlement the wife can purchase a nearby home to the children's school and that will make the parenting orders effective.  On the other hand the husband takes upon himself a bundle of debt in addition to the existing debt and must work hard in the practice to service that debt and to pay the wife the sum required and otherwise to support his children.

10. These orders clearly do not make provision for any child support sum and do not ordain any future order for payment of school fees and the like.  That is a matter for the parents to work through separately to the property orders.  This case did have issues of and involving initial contributions, and no doubt various issues of the level of work, contribution and the applicability of the section 75(2) factors.

11. All matters considered, and relying on the experience of counsel and the pragmatic commonsense outcome, and understanding that the wife receives a cash sum and the husband retains assets and significant liabilities, I conclude that the orders as negotiated are just and equitable.  I therefore make that declaration pursuant to section 79(2) of the Act.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate: …

Date: