Florence & Florence

[2008] FamCA 100

FAMILY COURT OF AUSTRALIA

FLORENCE & FLORENCE [2008] FamCA 100

FAMILY LAW – CHILDREN – Consent Orders
FAMILY LAW – PROPERTY – Consent Orders

Family Law Act1975 (Cth)

APPLICANT: MRS FLORENCE

RESPONDENT: MR FLORENCE

FILE NUMBER: MLF 1858 of 2006

DATE DELIVERED: 14 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lockie

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Ms Neal

SOLICITOR FOR THE RESPONDENT: Gadens

BY CONSENT IT IS ORDERED:
CHILDREN

1. That all previous parenting Orders made pursuant to the Family Law Act 1975 be discharged.

2. That the Wife and the Husband have equal shared parental responsibility for the children of the marriage, namely T… born on … January 1995 and K… born on … September 1996.

3. That the Wife and the Husband exercise day to day responsibility for the children when either or both children are in their respective care.

4. That the children live with the Wife and Husband as follows:

(a)      Commencing Friday 22 February, 2008 (or such later Friday as both parties may agree after the making of these Orders but failing agreement, not later than the first Friday of April, 2008), each alternate week from 6.00 p.m. Friday until the commencement of school or 9.00 am the following Thursday, with the Husband;

(b)      Save as is provided for in these Orders, at all other times with the Wife; and 

(c)      At such further or other times that shall be agreed between the parties.

1. That paragraph 4 of these Orders shall be varied and made subject to the following celebratory occasions:

(A)       Unless otherwise agreed, for the purposes of Christmas:

(i)     In even numbered years, the children shall spend time with the Husband from 3.00 p.m. Christmas Eve until 4.00 p.m. Christmas Day and with the Wife from 4.00 p.m. Christmas Day until 10.00am the morning after Boxing Day; and

(ii)    In odd numbered years, the children shall spend time with the Wife from 3.00 p.m. Christmas Eve until 4.00 p.m. Christmas Day and with the Husband from 4.00 p.m. Christmas Day until 10.00am the morning after Boxing Day.

(B)        Unless otherwise agreed, for the purposes of either child’s birthday:

(i)       In the event such a birthday falls on a school attendance day, the children shall spend time with the parent they are not scheduled to be living with for two hours at times to be agreed; or

(ii)      In the event such a birthday falls on a non school attendance day, the children shall spend four hours with the parent they are not scheduled to be living with at times to be agreed.

(C)       For the purposes of Mother’s Day, the children shall live with the Wife from 6.00 p.m. the evening prior to Mother’s Day to 6.00 p.m. Mother’s Day or such other day or time that shall be agreed to between the parties.

(D)       In the event that the Wife’s birthday falls during a period wherein the children are living with the Husband and unless otherwise agreed, the children shall spend time with the Wife:

(i)     For at least two hours at times to be agreed, if such a birthday falls on a school attendance day; or

(ii)    From 10.00 a.m. until 8.00 p.m if such birthday does not fall on a school attendance day.

(E)        For the purposes of Father’s Day, the children shall live with the Husband from 6.00 p.m. the evening prior to Father’s Day to 6.00 p.m. Father’s Day or such other time that shall be agreed to between the parties.

(F)        In the event the Husband’s birthday falls during a period wherein the children are living with the Wife and unless otherwise agreed, the children shall spend time with the Husband:

(i)     For at least two hours at times to be agreed, if such a birthday falls on a school attendance day; or

(ii)    From 10.00 a.m. until 8.00 p.m if such birthday does not fall on a school attendance day.

1. That for the purposes of paragraphs 4 and 5 of these Orders, unless otherwise agreed, where appropriate changeover shall occur at the children’s respective schools, or otherwise, the parent commencing their residential period shall collect the children from the other parent’s respective home.

2. That the Wife and the Husband shall ensure the children attend all sporting and extra curricular activities they are enrolled in and are required to attend during the periods of time in which the children are living in their household.

3. In the event that the Wife or the Husband intends to travel with T and/or K outside of the Commonwealth of Australia, unless otherwise agreed, prior to informing or discussing the proposed trip with the children, the parent intending to travel shall provide the other parent with at least 60 days notice in writing of this fact, including in such notice:

(A)       The flight arrangements;

(B)        The general itinerary for where T and/or K will be staying and contact details for all accommodation; and

(C)       Proposals for how T and/or K will communicate with the non travelling parent during the holiday and how any make up time should occur in the event the children miss any periods of time they are scheduled to spend with the non travelling parent.

1. In the event that T or K become seriously ill or injured whilst in the care of either the Wife or the Husband, such parent shall ensure the other parent is notified of same forthwith.

2. That the Wife and the Husband be at liberty to provide a copy of these Orders to the Principal/delegate of the Principal of any schools attended by the children from time to time.

3. That subject to the discretion of the Principal/delegate of the Principal and the Wife and the Husband meeting any associated costs, the Wife and the Husband be at liberty to:

(A)       Receive copies of school reports, school notices, school newsletters and like correspondence customarily provided to parents; and

(B)        Attend school concerts, functions, parent teacher interviews and any other events customarily attended by parents.

1. That the Wife and the Husband ensure the other parent is aware of their residential address and contact phone numbers and in the event of any changes to same they forthwith notify the other parent.

2. That each parent shall consider all reasonable requests of the other parent to vary the time each parent is to spend with the children under these Orders for the purposes of the other parent having a holiday with the children during school holiday periods.

3. That 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 as Annexure “A” to these Orders.

PROPERTY

1. That within 45 days of the date of making these Orders (the due date), the Husband pay to the Wife the lump sum of $1,803,928 (ONE MILLION, EIGHT HUNDRED AND THREE THOUSAND, NINE HUNDRED AND TWENTY EIGHT DOLLARS) (the payment).

2. That contemporaneous with the payment:

(a)      The Husband do all such acts and things and sign all such documents which may be necessary, to procure a discharge at his expense of each of the mortgages registered numbers … and … (the mortgages) registered against the property situated at S in the State of Victoria and more particularly known as Certificate of Title Volume … Folio … (the former matrimonial home) and/or re-finance the said mortgages in his sole name;

(b)      the Wife do all acts and things and sign all documents which may be necessary to transfer all of her right title and interest in the former matrimonial home to the Husband’s name, at his expense; and

(c)      the Husband indemnify and keep indemnified the Wife in respect of all repayments remaining to be made under the mortgages, and all rates and taxes of or with respect to the former matrimonial home.

1. That in the event of the payment not having been made by the due date, then interest shall accrue on so much of the payment that remains outstanding at the same interest rate applicable from time to time under the Family Law Rules, calculated daily until paid in full.

2. That in the event that the payment remains outstanding after 30 days from the due date, then each of the Husband and the Wife do all such acts and things and sign all such documents necessary to place the former matrimonial home on the market for sale altogether out of court (the sale) and that the proceeds of the sale be applied as follows:

(a)      in payment of all estate agent’s fees, commission and expenses, and all legal costs and disbursements of the sale;

(b)      in discharge of both mortgages registered against the former matrimonial home;

(c)      so much of the payment that remains outstanding together with interest thereon calculated daily from the due date, at the same rate applicable from time to time under the Family Law Rules, be paid to and be retained by the Wife; and

(d)      the balance then remaining be paid to and be retained by the Husband.

1. That pending the payment to the Wife, or the completion of the sale of the former matrimonial home in default of the payment:

(a)     the Husband have the continued sole use and occupation of the former matrimonial home and during such occupation, the Husband pay, as and when the same fall due, all mortgage repayments due under the mortgages registered against the former matrimonial home, and all rates and taxes and other outgoings of or with respect to the former matrimonial home;

(b)     save to facilitate the making of the payment to the Wife in accordance with these Orders, neither of the parties further encumber the former matrimonial home without the prior consent of the other in writing; and

(c)each of the parties holds their respective interests in the former matrimonial home upon trust pursuant to these Orders.

1. That if the same is not already registered in the name of the Wife, within 30 days of the date of making these Orders the Husband do all such acts and things to transfer to the Wife the Kluger motor vehicle in the Wife’s possession and driven by her. 

2. That within 30 days of the date of making these Orders, the Wife do all acts and things and sign all documents which may be necessary, to:

   (a)resign from her office of Director and Secretary in the company N Pty Ltd (the company);

   (b)transfer her share held in the company to the Husband or at his direction;

   (c)resign from any role she may have as Appointor or Guardian, including such role that would only take effect on the death of the Husband, in each of the Florence Asset Management Trust (FAMT) and the L Family Trust (LFT);

   (d)if ever requested to do so in writing by the Husband, relinquish her status as beneficiary of either of FAMT or LFT;

   (e)transfer or assign to the Husband or at his direction any loan account standing in her favour in each of the company, FAMT or LFT; and

   (f)transfer all of her right title and interest in the vineyard investment to the Husband or at his direction (including her transfer of any units in any unit trust through which that investment may be structured).

3. That the Husband pay, as and when the same fall due, all premiums and other expenses payable in respect of each of the following investments, till their conclusion or maturity:

   (a)     the E Project investment; and

   (b)     the vineyard investment;

   and upon the conclusion or maturity of each said investment, then the value at conclusion or maturity of each investment (if any), net of all taxes thereon, be divided as to 65% to the Wife, and 35% to the Husband.

4. That the Husband indemnify and keep indemnified the Wife against any and all liabilities in relation to the following (save for personal income tax already paid or payable by the Wife on income she has already received from same at the date of making these Orders):

   (a)     the Company;

   (b)     FAMT and LFT;

   (c)     the vineyard investment;

   (d)     the E project;

   (e)the capital gains tax payable on the already realised the property trust investment;

   (f)     the Husband’s credit card debt;

   (g)the hire purchase or lease repayments remaining to be made in relation to the Alfa Romeo motor vehicle;

   (h)     the JB Were Margin Loan; and

   (i)any contingent liability that may arise from the sale of the Husband’s interest in his professional practice during the course of the marriage.

5. That in the event that the Husband has not sold all of his personally held portfolio of shares after the expiry of 12 months from the date of making these Orders, then the Husband is to pay or refund to the Wife, 50% of any capital gains tax that any remaining shares in that portfolio would be payable in the hands of the Husband, had he sold them at the point of 12 months from the date of making these Orders (if any), and for the purposes of this Order, the Husband is to advise the Wife in writing of those shares in his personally held portfolio that have yet to be sold, immediately on the expiry of 12 months from the date of making these Orders.

6. That without limiting the generality of paragraph 34 hereof, the Wife retain absolutely without claim from the Husband:

   (a)the payment to be made to her by the Husband under paragraph 15 hereof;

   (b)the Kluger motor vehicle to be transferred to her under paragraph 20 hereof;

   (c)     the furniture and chattels in her possession;
   (d)     any funds she holds in bank accounts in her name;

   (e)the portfolio of shares held in her name in the JB Were Goldman Sachs premium account;

   (f)     the JB Were deposit notes held in her name;

   (g)any amount drawn by her since separation from any account of the parties;

   (h)any amount she may be refunded under paragraph 24 hereof in relation to shares yet to be sold by the Husband after 12 months from the date of making these Orders;

   (i)her share of any value of the investments referred to in paragraph 22 hereof on their conclusion or maturity; and

   (j)her superannuation entitlements, including those additional superannuation entitlements she will receive as a result of the superannuation splitting Order contained in paragraphs 28 and 29 hereof.

7. That without limiting the generality of paragraph 34 hereof, the Husband retain absolutely without claim from the Wife:

   (a)the former matrimonial home, subject to the mortgages registered thereon;

   (b)     any amount held in any bank account in his name;

   (c)     the furniture and chattels in his possession;

   (d)any amount withdrawn by him from any of the parties’ accounts since separation;

   (e)the portfolio of shares held in his name in the JB Were Goldman Sachs Premium Account;

   (f)     any amount held in the JB Were cash account in his name;

   (g)     the JB Were deposit notes in his name;

   (h)the balance of the funds received in respect of the realisation of the Property Trust held in his name;

   (i)FAMT, together with the assets and any capital losses of FAMT;

   (j)LFT, together with the assets and any capital losses of LFT; and

   (k)his superannuation entitlements that will remain in the Florence Superannuation Fund after the superannuation splitting Order provided for in paragraphs 28 and 29 hereof has been effected.

8. That within 14 days of the date of the Wife having nominated in writing her choice of superannuation fund in which she would like such entitlements transferred to, each of the Husband and the Wife do all acts and things and sign all such documents which may be necessary to roll over the Wife’s existing entitlements under the Florence Superannuation Fund before the superannuation split referred to later in these Orders, into such other Fund nominated by the Wife, and upon that rollover of her entitlements having been effected into the nominated Fund, the Wife forthwith resign from her role of Trustee and Member of the Florence Superannuation Fund.

SUPERANNUATION SPLIT

1. That the base amount to be allocated to the Wife out of the interest of the Husband in the Florence Superannuation Fund (the Fund), pursuant to Section 90MT(4) of the Family Law Act 1975 is $90,213. 

2. That pursuant to Section 90MT(l)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of the Husband in the Fund, the Trustee of the Fund shall:

   (a)pay to the Wife or her administrators, executors, beneficiaries, heirs or assigns to the extent permitted by law the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $90,213; and

   (b)make a corresponding reduction in the entitlement that the Husband would have had but for these Orders in the Fund.

3. That the provisions of paragraphs 28 and 29 of these Orders have effect from the operative time.

4. That the operative time for the purpose of these Orders is the fourth business day after the day on which a sealed copy of these Orders is served on the trustee of the Fund and immediately after the Wife’s existing superannuation entitlements in the Florence Superannuation Fund has been rolled over into her separate nominated superannuation fund in accordance with paragraph 27 of these Orders.

5. That these Orders are to bind the Trustee of the Fund to observe their obligations as Trustee under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 (“the Regulations”).

6. That any costs incurred in administering and implementing the splitting order provided for herein be paid by the Husband.

7. That unless otherwise specified in these Orders and save for the purposes of enforcing any money 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 making these Orders;

   (b)each party forego any claims they may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to or earned by the other;

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

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

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

SPOUSAL MAINTENANCE

1. That this is an Order to which Section 77A of the Family Law Act 1975  applies, and of the property and payments to be retained by the Wife under these Orders, the sum of $150,000 (ONE HUNDRED AND FIFTY THOUSAND DOLLARS) is deemed to be provision for the capitalized spousal maintenance of the Wife.

GENERAL

1. That the Wife’s Amended Form 1 Application filed on 13 November, 2007 and the Husband’s Amended Form 1A Response filed on 2 November, 2007 be otherwise dismissed.

2. That all directions for the filing of affidavit material and preparation of these proceedings for trial, be discharged, including the Direction that there be an updated Family Report prepared by Ms D.

3. That these proceedings otherwise be removed from the list of cases maintained by the Court.

THE COURT NOTES:

A.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.

B.That each of the parties agrees that they will consider a variation to these Orders for the living arrangements the children of the marriage T and K as and from the commencement of the 2009 academic year, from the arrangements for those children as set out in these Orders, to arrangements whereby each of the parties has both children living with them for an equal period of time by way of a continuous 7 nights with each party before changeover of the children to the other parent for 7 continuous nights.

C.That these Orders are conditional on the parties, contemporaneously with entering into Final Orders in these terms, also entering into a Child Support Agreement in respect of the support of the two children of the marriage T and K, and which is to be registered with the Child Support Agency, in the terms of the Child Support Agreement a copy of which is Annexure “B” to these Orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1858 of 2006

MRS FLORENCE

Applicant

And

MR FLORENCE

Respondent

REASONS FOR JUDGMENT

1. I have in the duty list today an application for parties to have consent orders made in respect of both property and children's matters. 

2. This is a case involving two young children, a son, who is aged 13 and a daughter who is aged 11.  I have had the benefit of reading a very comprehensive set of proposed orders about each of the children and the time they are to spend with their respective parents.  I am quite satisfied that these orders are in their best interests.

3. In respect of the property matters I have also had the advantage of reading the material filed by the parties, which although fairly general, gives a pretty good overview of just exactly what the parties have between them and I can see what is, again, an extraordinarily complex set of orders that the parties have diligently worked towards a resolution.  I'm told that the outcome equates to about 65 per cent to the wife and 35 per cent to the husband and that looks remarkably like the sort of range one would expect in circumstances in which the parties are both working but there is a significant disparity between their respective earnings. 

4. I'm quite satisfied on what I've read that these orders are just and equitable in the circumstances and I'm content to make the orders.

5. Accordingly in the matter of Florence I make orders in terms of the minutes, which I'll mark as Exhibit A.  I'll direct that the exhibit remain on the court file and I'll request that the solicitor for the husband email the minute only to my associate as soon as possible.

I certify that the preceding Five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:           19 February 2008