Gadde and Gadde & Anor

[2018] FamCA 404

FAMILY COURT OF AUSTRALIA

GADDE & GADDE AND ANOR [2018] FamCA 404

FAMILY LAW – PROPERTY – Identification of the pool of assets – just and equitable to notionally add back certain items into the pool – financial resources – whether evidence sufficient to show that a discretionary beneficiary has a reasonable expectation to call on financial support from the trust – post-separation contributions - Fruits of the litigation lien as payment to former solicitor.

FAMILY LAW – CHILDREN – Parenting – meaningful relationship – extent of benefit of meaningful relationship – no overnight time – inability of a parent to be involved in the minutia of a child’s life – relationship of less benefit – impact upon international relocation application – estrangement from step-daughter – appropriate for no orders to be made in relation to step-daughter – drug use – low risk to child – drug testing regime likely to result in frustration of other orders – no order for drug testing.

Child Support (Assessment) Act 1989 (Cth) ss 117, 124, 125
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60DAC, 65DA, 65DAA, 65Y(2), 75, 79, 106A

Adamson & Adamson (2014) 51 Fam LR 626
Brandt & Brandt (1997) FLC 92-758
Browne v Green (1999) FLC 92-873
Dickons & Dickons (2012) 50 Fam LR 244
Ferraro and Ferraro (1993) FLC 92-335
Firth v Centrelink and Anor (2002) NSWLR 451

Gollings and Scott (2007) FLC 93-319

Grier & Malphas (2016) 55 Fam LR 107
Hall & Hall (2016) 257 CLR 490
Kouper & Kouper (No 3) [2009] FamCA 1080
Kowaliw and Kowaliw (1981) FLC 91-092
Morgan & Miles (2007) FLC 93-343
Norbis v Norbis (1986) 161 CLR 513
Sebastian & Sebastian (No 5) [2013] FamCA 191
Shimizu & Tanner [2011] FamCA 271
Townsend and Townsend (1995) FLC 92-569

APPLICANT: Ms Gadde

RESPONDENT: Mr Gadde

INTERVENOR: KK Lawyers

FILE NUMBER: SYC 417 of 2015

DATE DELIVERED: 1 June 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 1 - 5 May, 7 June and 21 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S Williamson

SOLICITOR FOR THE APPLICANT: Barkus Doolan

SOLICITOR FOR THE RESPONDENT: Self-representing

COUNSEL FOR THE INTERVENOR: Mr Carter

SOLICITOR FOR THE INTERVENOR: Pearson Emerson Family Lawyers

Orders

1. Within 21 days of the date of these Orders, Mr Gadde (“the Husband”) shall do all acts and things and sign all documents to:

   1.1transfer and assign to Ms Gadde (“the Wife”) all of his right, title and interest in the issued share capital, if any, in B Pty Limited (“the Company”);

   1.2transfer and assign to the Wife all of his right, title and interest in any credit loan account, if any, in the Gadde Family Trust;

   1.3resign from each and every office that he holds with the Company;

   1.4sign any document that may be provided to him by the Wife that has the effect of transferring and assigning to the Wife any right, position, power or interest in the Gadde Family Trust and otherwise relinquishing any right, position or power that he holds in relation to the Gadde Family Trust; and

   1.5sign all documents and records that will remove the Husband from having any access to any share portfolio and/or bank accounts in the name of the Gadde Family Trust.

2. Immediately following the Husband’s compliance with Order 1 above, the parties shall:

   2.1take all necessary steps and execute all documents to:

   2.1.1cause to be transferred to the Husband the Gadde Family Trust share portfolio with ZA Partners identified at item 27 of the table under heading “Assets at trial”; and

   2.1.2take all necessary steps and execute all documents to cause to be paid into an account of the Husband’s nomination the balance of the funds held in the parties’ NAB account ending …46.

3. Immediately following the Husband’s compliance with Order 1 above, the Wife:

   3.1cause to be paid into an account of the Husband’s nomination the sum of $96,246; and

4. The Wife provide to the Husband within seven days of the making of these Orders the Mr ST artwork.

5. Within seven days of the receipt of the funds in Order 3.1 the Husband pay to KK Pty Ltd the sum of $29,744.12, plus interest calculated in accordance with the fee agreement annexed to the affidavit of Mr KK of 13 August 2015.

Superannuation

1. That within 28 days after the date of the making of these Orders, the Husband and Wife do all acts and things and sign all documents necessary to cause:

   6.1The Company, as Trustee of the Gadde Family Superannuation Fund, to rollover into another superannuation fund nominated by the Husband $11,772 of the combined entitlement of the Husband and the Wife in the Gadde Family Superannuation Fund, with the Husband to meet the costs of preparation and completion of all documents necessary to comply with this Order ("the Husband's benefit");

   6.2Immediately thereafter, the Husband and Wife shall, in their capacities as directors and shareholders of the Company, cause a meeting of the Company to be held in accordance with the Rules of the relevant Trust Deed of the Gadde Family Superannuation Fund, the purpose of that meeting being:

   6.2.1to note receipt of the request by the Husband to transfer the Husband's benefit to another complying superannuation fund;

   6.2.2to note receipt of the election by the Wife to hold the remaining benefits in the Gadde Superannuation Fund in her sole name; and

   6.2.3to authorise the transfer to the Trustees of the Husband's new complying superannuation fund of his member benefit in the Gadde Superannuation Fund.

2. Before the close of the meeting of the Gadde Superannuation Fund, the Husband shall do all acts and things and sign all documents as may be necessary to:

   7.1resign his membership from the Gadde Superannuation Fund;

   7.2resign as a director of the Gadde Superannuation Fund;

   7.3vote in favour of any resolution that the Wife may propose prior to his resignation which may have the effect of appointing a new director of the Gadde Superannuation Fund; and

   7.4transfer to the Wife his shareholding in the Gadde Superannuation Fund.

3. Except as specifically provided for by any paragraph comprising these Orders to the contrary, as against the Husband, the Wife is the sole owner of, and the Husband has no interest in:

   8.1The Gadde Family Trust;

   8.2The Wife's bank accounts;

   8.3The Wife's shares;

   8.4The Wife's motor vehicle;

   8.5The Wife's superannuation; and

   8.6All other property or financial resources of whatsoever nature and kind in the possession of the Wife at the date of these Orders, including the Wife's interest in the AA Trust.

4. Except as specifically provided for by any paragraph comprising these Orders to the contrary, as against the Wife, the Husband is the sole owner of, and the Wife has no interest in:

   9.1The Husband's bank accounts;

   9.2The Husband's motor vehicle;

   9.3The Husband's superannuation;

   9.4All other property or financial resources of whatsoever nature and kind in the possession of the Husband at the date of these orders.

5. Except where these Orders provide to the contrary, the Husband be responsible for, and indemnify the Wife in respect of, all debts, liabilities and claims in his name or that arise in relation to any of the items of property that vest with him in accordance with these Orders, including but not limited to:

   10.1Any credit card liabilities held by the Husband, either in his sole name or jointly with a third party (other than the Wife);

   10.2Any amount due and payable to American Express;

   10.3Any liabilities of the Husband to the Australian Taxation Office.

   10.4The loan from Mr X; and

   10.5The loans from Ms Y.

6. Except where these Orders provide to the contrary, the Wife be responsible for, and indemnify the Husband in respect of, all debts, liabilities and claims in her name or that arise in relation to any of the items of property that vest with her in accordance with these orders, including but not limited to:

   11.1Any credit card liabilities held by the Wife, either in her sole name or jointly with a third party (other than the Husband);

   11.2Any liabilities of the Wife to the Australian Taxation Office.

7. Except as specifically provided for by any paragraph comprising these Orders to the contrary, the Husband and the Wife each release the other from all debts owing from one to the other.

8. Both parties promptly do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these Orders.

9. In the event either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.

Parenting

1. That the Wife has sole parental responsibility for L, born … 2009.

2. L is to live with the Wife.

Relocation

1. That the Wife is permitted to relocate the residence of L to New Zealand and shall provide to the Husband 28 days’ notice of her intention to move to New Zealand with L.

The child G

1. In relation to G, born … 2004:

   18.1All previous orders are discharged;

   18.2No orders are made in respect of G;

   18.3The Court notes that G shall spend time with the Husband in accordance with her wishes from time to time.

The child L

PENDING RELOCATION TO NEW ZEALAND OR IN THE EVENT THE HUSBAND RELOCATES TO NEW ZEALAND

1. Pending L’s relocation to New Zealand, or in the event the Husband and Wife are both living in New Zealand:

   a.The Husband spend time with L as follows:

   i.During the school term:

   1.Each Sunday from 9am to 5:30pm;

   2.On Father's Day Sunday from 9am to 5:30pm; and

   3.On the Husband’s birthday from 3:30pm to 6:30pm.

   ii.During the school holiday periods as follows:

   1.On the first Saturday and Sunday and Monday of the school holiday period from 8:30am to 6pm each day; and

   2.On the last Friday, Saturday and Sunday of the school holiday period from 8:30am to 5pm each day.

   b.At other times agreed between the parties in writing.

ARRANGEMENTS FOR L IF THE HUSBAND REMAINS LIVING IN AUSTRALIA AND THE CHILDREN AND WIFE LIVE IN NEW ZEALAND

1. Upon the Wife relocating the residence of L to New Zealand, the Husband spend time with L as follows:

   a.During the New Zealand school terms:

   i.Two Saturdays and Sundays during each school term, with such time to take place in New Zealand from 8am to 6pm;

   ii.One Saturday and Sunday during each school term, with such time to take place in Australia from 8am to 6pm on a date fixed by agreement and in the event of no agreement the second weekend of each school term; and

   iii.During the school holiday periods as follows:

   1.On the first Saturday and Sunday and Monday of the school holiday period from 8am to 6pm each day, in Australia; and

   2.On the last Thursday, Friday, and Saturday of the school holiday period from 8am to 6pm each day, in New Zealand.

2. The Husband shall provide the Mother the dates he proposes to spend time with L in New Zealand in accordance with Order 20(a)(i), with such notice to be made in writing by email or SMS not less than 21 days prior to the date of the commencement of such time, and should the Husband fail to nominate such dates within the time provided for pursuant to the Orders, time shall be forfeited by the Husband.

3. It is noted that in the event the Husband provides less than 21 days' notice in relation to the weekend time provided for pursuant to Order 20(a)(i) the Wife will use reasonable endeavours to accommodate the Husband’s request but is not required to cause the time to happen.

4. In the event that:

   23.1the parties agree to the weekend time for L in Australia pursuant to Order 20(a)(ii); or

   23.2the parties do not come to an agreement 21 days prior to the second weekend of the school term;

   the Wife shall, within 48 hours, reserve return airfare tickets for L in respect of his travel to Australia, and the Husband shall pay his half share of the cost of such flight, by way of payment to the Wife's nominated bank account, within 48 hours of receipt by him of an email with the proposed travel itinerary.

5. In the event the Husband does not meet one half of L’s airline travel within 48 hours as referred to in Order 23, then such travel shall not take place and such time shall not occur unless the Wife otherwise agrees to a variation to the terms of these Orders.

SPECIAL OCCASIONS

1. That notwithstanding anything contained in these Orders, L shall live with the Husband and Wife on the following occasions:

   a.With the Wife for the weekend each year that includes Mother's Day, unless this conflicts with the school holiday time with the Husband pursuant to Order 20(a)(iii);

   b.For Christmas time in even numbered years in New Zealand:

   i.With the Husband from 2pm to 6pm Christmas Day, from 8am to 6pm Boxing Day and from 8am to 6pm the day following Boxing Day; and

   ii.With the Wife for the balance of the time from 10am on 23 December to 5pm 2 January.

   c.For Christmas time in odd numbered years in either Australia or New Zealand at the Husband’s nomination:

   i.With the Husband from 8am to 6pm Christmas Eve and 8am to 2pm on Christmas Day; and

   ii.With the Wife from 2pm Christmas Day to 7pm Boxing Day.

   d.For the purposes of Order 25(c) the Husband is to make the nomination in writing (including by email or SMS) no later than 1 December of the relevant year and failing doing so the location of either Australia or New Zealand shall be at the Wife’s discretion.

   e.In the event that the Husband and L are in the same country on the day of either L’s or the Husband’s birthdays, but not otherwise spending time together, then L shall spend time with the Husband from 12pm until 6pm on that day provided that, if it is a school day, that the time does not commence until the end of the school day.

GENERAL

1. L may communicate with each parent at such times as he wishes to do so and the other parent shall facilitate and encourage such communication by telephone, in writing or by other electronic means including but not limited to email and audio visual communication such as Skype.

2. The Wife shall facilitate L having communication by telephone or audio visual communication with the Husband twice weekly by agreement, and failing agreement at 6pm (Australian time if L is in Australia and New Zealand time if L is in New Zealand) each Monday and Thursday.

3. The Wife shall authorise the Principal and staff of L's schools to supply the Husband with copies of all school reports, school photographs, school counsellors notes, memos, school newsletters and any other information in relation to L that the Father may request from the school from time to time.

4. The Wife shall authorise L’s treating health practitioners to provide to the Husband information about L including, but not limited to, diagnosis and treatment, and shall keep the Husband advised of the identity of L’s treating health practitioners.

5. Each party must notify the other immediately of any serious injury or illness suffered by L whilst with that party.

6. Each party must notify the other not more than 24 hours after any change to their address and/or landline or mobile telephone numbers and/or theirs and L's email addresses.

7. That school holidays for the purpose of these Orders commence at 9:00am on the Saturday immediately following the last day of the school term and conclude at 5:00pm on the Sunday immediately prior to the commencement of each school term.

8. Each party must notify the other of the address and telephone number of the place where L will be staying during holidays spent away from their respective residences, no later than seven days prior to the commencement of any holiday period and provide the other party with a copy of any itinerary with departure and return details.

OVERSEAS TRAVEL

1. That pursuant to s 65Y(2) of the Act, the Wife is permitted to take L out of the Commonwealth of Australia during the periods of time L is living with her pursuant to these Orders.

2. The Wife shall provide to the Husband written details of any overseas travel (other than to New Zealand or Australia) no less than seven days prior to the intended day of departure including:

   35.1dates of departure from or return to Australia and/or New Zealand;

   35.2a copy of the itinerary provided by the travel agent or airline; and

   35.3a copy of the return airline tickets (including any electronic ticket or booking).

Changeover

1. Whilst ever the Wife and L remain living in Australia, unless otherwise agreed in writing between the parties, the Husband shall collect L at the commencement of his time with him from school or from the Wife’s home and the Wife or her nominee shall collect L from the Husband’s home.

Restraints

1. Each party is restrained from:

   37.1Denigrating the other party in the presence, or hearing, of either L or G; and

   37.2Showing any documents relating to these proceedings and discussing these proceedings with or within the hearing of either L or G.

Agreement between the parties

1. The parties are at liberty to depart from the terms of these Orders by agreement in writing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gadde & Gadde has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 417 of 2015

Ms Gadde

Applicant

And

Mr Gadde

Respondent

REASONS FOR JUDGMENT

1. The Applicant in this matter is Ms Gadde (“the Wife”); the Respondent is Mr Gadde (“the Husband”).

2. These proceedings concern a parenting dispute regarding L, the parties’ child, and, to a limited extent, G, the Wife’s daughter who, although not a child of the relationship, was raised as though she was prior to the breakdown of the relationship.

3. G’s father, Mr LL, was on notice of, and was joined to, the proceedings.  He did not participate.

4. The proceedings also concern the property of the parties, and a claim by a third party, a former solicitor for the Husband, as a creditor of the Husband.

5. The parties are both from New Zealand.  They started living together, in Australia, in July 2006, marrying in 2007.  L was born in 2009 and is now eight years old.  G was born in 2004 and is almost 14 years old.  The parties separated in about March 2014.  The children have always been primarily cared for by the Wife. At present the Husband spends no time with G, and spends time with L that does not include overnight time.

6. While the orders sought by each of the parties are attached as an appendix to these reasons, in general terms the Wife seeks orders regarding the children such that she has sole parental responsibility, they live with her in New Zealand, that L spends blocks of sequential day time periods with the Husband, and that G spends time with the Husband as she chooses.

7. The Husband seeks orders that equally share parental responsibility for L.  For G, he seeks orders directed to family therapy and flowing from that, orders for a day time each fortnight and for periods of time each school holiday.  For L, the Husband seeks orders that will gradually increase to a 9-5 split across a fortnight, and a splitting of school holidays.

1. The parties both brought significant financial resources into the relationship.  During the relationship, and since, the Wife has had primary responsibility for, and care of, the children.  She has also engaged in some paid employment.  During the relationship the Husband bore the primary responsibility for the income of the parties, although he was also involved in the care of the children. This was maintained for a period after the relationship broke down, although eventually the Husband ceased working and each of the parties were left to draw upon the property of the relationship and rely on other sources, such as loans from family and friends.

2. The parties each seek a significant number of notional addbacks of property disposed of since their relationship ended. 

3. The Wife seeks a lump sum child support payment of $200,000.

4. The Intervenor seeks the payment of the debt owed by the Husband for legal work through a fruits of the litigation lien in the sum of $29,744.12 plus interest.[1]

Material relied upon

[1] At [14] of the affidavit of Mr KK dated 13 August 2015.

Wife:

1. The Wife identified the following documents which she relied upon:[2]

   [2] Outline of Argument on behalf of the Wife filed 14 April 2017.

   (a)Amended initiating application filed 10 March 2017;

   (b)Affidavit of the Wife filed 24 November 2016;

   (c)Affidavit of the Wife file 13 March 2017;

   (d)Affidavit of Mr PP filed 14 April 2016;

   (e)Affidavit of Mr QQ filed 10 June 2016;

   (f)Affidavit of Ms PP filed 14 June 2016;

   (g)Affidavit of Ms RR filed 14 June 2016;

   (h)Financial statement of the Wife filed 23 November 2016;

   (i)Affidavit of Dr HH filed 28 November 2016;

   (j)Affidavit of Ms Y filed 29 November 2016;

   (k)Family report by Dr P;

   (l)Affidavit of Mr SS filed 27 April 2017; and

   (m)Affidavit of Ms PP filed 14 June 2016 and proof of evidence (Exhibit W2).

Husband:

1. At trial the Husband identified the following documents which he relied upon:

   (a)Affidavit of Ms W filed 24 February 2017;

   (b)Affidavit of Mr OO filed on 8 December 2016 (not required for cross-examination);

   (c)Affidavit of Mr TT Gadde filed 11 October 2016 (not required for cross-examination);

   (d)Affidavit of Dr II filed 8 December 2016; and

   (e)Affidavit of Dr JJ filed 9 December 2016.

Intervener:

1. The Intervenor identified the following documents relied upon:[3]

   (a)Affidavit of Mr KK filed 13 August 2015;

   (b)Affidavit of the Husband filed 17 March 2017;

   (c)Husband’s Financial Statement, filed 3 February 2017; and

   (d)Wife’s Financial Statement, filed 23 November 2016.

   [3] Intervener’s Case Outline filed 13 April 2017.

Property-Related Proceedings

1. The parties focused on particular issues in relation to property, which included the question as to whether each of the parties had given adequate disclosure in accordance with their disclosure obligations.

2. For the Husband, they also focused upon whether the assets brought into the relationship by the Wife were offset by loans or not. He further focused upon the nature of the relationship of the Wife with various trust entities, and whether these could be considered to be a financial resource that she would be able to rely upon.

3. Each of the parties questioned the manner of use of the parties’ assets, in particular whether each of them had engaged in waste, and whether their manner of use of the assets justified an adding back of items notionally into the pool.

4. It is convenient to look at the property position of the parties at the commencement of their relationship, at the point of separation, and at trial.

Disclosure issues

1. The Wife complained about the Husband’s lack of disclosure regarding cash withdrawals post-separation. He was cross-examined about this and was unable to explain what the cash was used for. It may be accepted that there was a lack of explanation for the use of cash funds, although the fact of withdrawals was available to the Wife as shown in her evidence at exhibits W29 and W30.

2. Each party complained regarding whether the other party had made adequate financial disclosure.

3. The Husband made a number of complaints that the Wife had failed in her obligations to give disclosure in a manner impacting upon the hearing of the case.  He particularly focused on issues relating to the identification and valuation of the Wife’s interests in foreign trusts.  Historically, the Wife has received benefits, as a discretionary beneficiary, from a number of trusts formed by her family members.

4. These trusts include the T and U Trusts, which, as will be dealt with later in the judgment, provided funds to the Wife for her purchase of property prior to the relationship.  The Wife had said that she believed that these trusts had been subsequently rolled into another trust, the Z Trust.  She has provided for the Husband the trust deeds for these entities that show that she is merely a discretionary beneficiary.  She also provided to him accounts showing that she was mistaken about the trusts having been rolled into the Z Trust.  I am unable to identify a failure on the part of the Wife in respect of her disclosure obligations in respect of these entities.

5. The Husband also complains that the Wife has an interest beyond her description as a discretionary beneficiary in the Z Trust, being a final beneficiary.  Her status as a final (vesting) beneficiary of the Z Trust appears to add nothing of significance.  The final vesting date for that trust is, at present, about 80 years from its formation, a time at which the Husband accepted that the Wife would be over one hundred years old. In any event, disclosure of material showing her status as a final beneficiary was made available to the Husband.

6. The Husband complains that the Wife represented to him that she was merely a beneficiary of the AA Trust.  However, since the death of her father she has become an appointor.  It was the provision of material pursuant to the Wife’s disclosure obligation that identified that her status in respect of the AA Trust had changed. 

7. The Husband has also complained that the Wife has not given sufficient disclosure in relation to money received from the AA Trust.

8. However, on 6 March 2015 the Wife’s solicitors wrote to the Husband enclosing the Z Trust financial statements for the year ended 31 March 2012, including the Z Trust statement of financial performance for the year ended 31 March 2012, and identifying distributions in the 2011 financial year of $150,000 to the AA Trust.[4]

   [4] Exhibit W39; at p 22 [5] of the transcript on 7 June 2017.

9. At the resumption of the hearing on 7 June 2017 a further issue arose as to disclosure of financial documents in respect of the AA Trust.  Two particular matters were the subject of complaint.  Firstly, the Husband received bank statements in relation to the AA Trust on 6 June 2017.  The complaint was made as to the late provision of this material.  However, assuming that material was produced pursuant to her ongoing disclosure obligation, it appears to, in substance, do no more than verify an earlier disclosure of the same subject matter.  That is, exhibit W39, disclosed to the Husband on 6 March 2015, showed payment to the AA Trust from the Z Trust of $150,000, into the Wife’s account.  The Wife’s evidence is that of this amount $100,000 was then placed into a term deposit.  The Husband accepts that he was aware of this being placed in the term deposit in 2013 (that is, pre-separation).  The material subsequently disclosed shows that this remained the case.

10. The Wife also provided to the Husband tax returns for the AA Trust from 2011 to 2017 (being New Zealand tax returns).  These were provided to the Husband on 5 June 2017 and constitute exhibit W40.  These appear to have been provided in response to a previous complaint by the Husband that there were no tax returns prepared in New Zealand for the AA Trust, and were prepared following that complaint.  The provision of these tax returns shows that the position shown above has been a static position between 2011 and 2017.  That is, the AA Trust assets are comprised of the $100,000 in the term deposit (along with interest accrued) leaving a total at 31 March 2017 of $117,655.  It is notable that the Husband previously had the 2015 and 2016 financials from the AA Trust which disclose that it was comprised of the term deposit.  The late provision of the tax returns did not inhibit the Husband.

11. Exhibit W37 is a bundle of correspondence in relation to disclosure to the Husband of the Wife’s financial documents and is accompanied by an aide memoir setting out the contents of the exhibit. The Husband agrees that exhibit W37 represents correspondence that he has received between 9 October 2014 and 5 June 2017, although he qualifies by saying that he is unsure whether or not there may have been further correspondence.  Exhibit W37 shows the provision of all trust deeds to the Husband, the provision of tax returns, financials and loan reconciliations for the AA Trust (being the trust of which the Wife is both appointor and beneficiary), along with various financials from the other trusts touched upon in the proceedings.

12. The Husband also complains that the Wife told him that, as far as she was aware, her mother was the sole beneficiary of her father’s estate.  It appears, however, that her father’s estate went to the Z Trust.  It was not established that this was anything but a mistake on the Wife’s part.

13. The Husband further complains that the Wife was a director of UU Investments (“UU”), where she had previously denied any involvement.  It turns out that at the commencement of the relationship the Wife was a director of that entity, from October 2003 to August 2006.  No case was made that she owned any part of UU.  She was cross-examined as to whether she had received any distribution from UU, but was unable to say.  In the absence of any further evidence as to this matter, nothing turns on this directorship.  

14. The Husband also contends that the Wife should have made further disclosure in relation to these trusts, by providing a valuation of her interest in them.

15. The Husband has been provided with trust deeds and various financial documents relating to the relevant trusts.  In the face of these, it is unclear how the Wife is said to have failed in her duty of disclosure.  If the Husband sought the valuation of the foreign trusts in the proceedings it was incumbent upon him to have pursued such in a timely manner, by application if necessary.  He did not.

16. Orders of 15 August 2016 provided that:

    On 14 days’ notice in writing the parties may relist the matter for directions in relation to Single Experts for valuation and in relation to subpoenas being issued in respect of New Zealand-based entities. 

17. No directions for valuation were sought. 

18. I am unable to determine that the Wife has failed to comply with her disclosure obligations in any matter of significance to the hearing of the matter.

Contributions and property at the commencement of the relationship

1. The parties commenced their relationship in about December 2004.[5]  In July 2006 the Wife moved from City F to Sydney with G and began living with the Husband.

   [5] At p 123 [25] of the transcript on 2 May 2017.

2. Exhibit C1 was the position that the parties set out as at the start of the relationship.  There were a number of matters that were not agreed.

3. The primary asset for the Wife was the property at D Street, City E, New Zealand, a property which was held by the D Trust.  The Wife retained the proceeds of the sale of this property into the relationship at $761,236.38.  Against this, the Wife alleged at Exhibit C1 a loan owed to the T Trust and U Trust of $620,000.  By the end of the trial she no longer alleged that this was a loan, meaning that the proceeds from D Street were no longer offset.  The evidence led in relation to what was initially said to be a loan, and how the parties dealt with the proceeds, is set out below under the heading ‘The Z Trust’.

4. The Wife by exhibit C1 says that she had savings of $60,000.  At annexure C of the Wife’s affidavit of 10 March 2017 she listed two bank accounts; a Simple Saver account with a closing balance of $2,430.77 as at 30 June 2006, and a Bonus Saver with a balance of $53,275.51 as at 30 June 2006.  The Wife’s savings as at 30 June 2006 can be taken as $55,706.28.

5. The Husband, in particular, relies upon [9-19] of his trial affidavit in relation to his contributions at the commencement of the relationship.  He says that he had a German motor vehicle worth $50,000, the purchase of which was evidenced by a tax invoice dated 19 April 2006 and annexed at JMG-8.

6. The Husband also brought into the relationship a personal share portfolio, held in the name of VV Limited, a New Zealand company of which the Husband was the sole director and shareholder.  He asserted a portfolio value of $253,532 as at 30 June 2006, derived from [15] of his trial affidavit.  He says that the value of the portfolio is derived from the deduction of unsettled trades from the market value.  Annexure JMG-5 was a holding report for VV Limited as at 30 June 2006, setting out market value and referencing unsettled trades.  It is unclear how the Husband’s figures were derived from the source documents at JMG-5, although neither does the assertion as to the value at the commencement of the relationship appear to have been the subject of direct challenge during the proceedings.  It was not a matter that he was challenged about in cross-examination.  Under those circumstances, his assertion as to the value of the share portfolio at the start of the relationship should be accepted.

7. In May 2006, shortly before the Wife moved to Australia, the Husband signed on with V Bank. This involved a pre-tax sign on bonus of $900,000 and a salary of $300,000 p/a.  The bonus was paid in February 2007.  The Husband and Wife both say that a tax liability corresponding with this bonus should be reckoned at $481,500.

8. There is a dispute as to the value of furniture and jewellery at the start of the relationship.  The Husband seeks that the value reached by the valuer, Mr SS (after the end of the relationship) be used and that each be assigned a contribution value of half that.  This conflicts with the position at exhibit C1 where he asserted a value of his household items at $50,000, and the Wife a value of her household items at $80,000.  The scant evidence about the value of the household items at the start of the relationship means that it is not possible to be satisfied as to any particular value at that time.  Absent proof of the nature of the contribution involved with such household items they will not form a part of the reckoning.

9. The Husband brought artwork into the relationship.  The value is disputed.  The Husband sold two of the three pieces of artwork, for AUD$12,500 in November 2016 and retained the proceeds of this sale.  He asks that the value assigned by Mr SS of $8,000 for the other piece be accepted.

10. The value at the start of the relationship of the two artworks is inconsequential given the disposal and use by the Husband.  The best evidence, then, for the remaining artwork brought into the relationship is the evidence of Mr SS in relation to the remaining piece, at $8,000.

11. By exhibit C1, both the Husband and the Wife assert a value of his superannuation of $70,188. 

12. The Husband asserts a 25 per cent share in a property at R Town at AUD$127,500 / NZ$170,000.  The parties do not agree on the value, and there is a lack of evidence as to the value.  Annexure JMG-3 was a copy of a valuation report for the R Town property as at 1 December 2004, which valued the property at NZ$680,000.  There is, however, no reason to accept the value asserted in JMG-3.  It is a hearsay representation of an opinion, without the establishing of qualification to give the opinion.  The reasoning behind the opinion is not exposed.

13. By exhibit C1, both the Husband and the Wife agree that the mortgage on the R Town property was at $91,020.  The Husband says that this mortgage was subsequently paid down to approximately $41,000 by November 2013, although the Husband says that this was further drawn against for the purchase of the O Town property deposit of NZ$62,500, by the parties.  This meant that whatever gains were made on the mortgage during the relationship were then used for O Town, and that the indebtedness in relation to R Town was, by the end of the relationship, approximate to that agreed at the beginning of the relationship.

14. The best measure, then, of the value of the property may be taken from the proceeds received from the sale of the property by the Husband in November 2014 for $50,000.  In the absence of persuasive evidence of the value of R Town, this will be used as approximating the net value of his interest in R Town as brought into the relationship.

15. From these it may be taken that the parties contributed, at about the start of the relationship, the following:

    Wife               proceeds of D Street  $761,236.38

    Wife               savings  $55,000

    Husband        art work  $8,000

    Husband        motor vehicle  $50,000

    Husband        share portfolio  $253,532

    HusbandV Bank sign on bonus  $418,500

    ($900,000 - $481,500 tax liability)

    Husband        25 per cent share of R Town property      $50,000

    Husband        superannuation  $70,188

16. The position then, at the commencement of the relationship, is that the Wife brought in a net amount of approximately $816,000, and the Husband a net amount of approximately $850,000 (including superannuation).

17. It may be observed that there is little, if any, significant difference in their initial financial contributions.

The Z Trust

1. The Wife, for much of the trial, has said that she owes a debt to the Z Trust.  The monies that were alleged to be owed to the Z Trust fell into two categories. 

2. The first related to a purported loan of $650,000 to the Wife for her purchase of a property before the relationship at D Street in New Zealand.  The status of these monies was placed in issue by the Husband well in advance of the trial, his case being that there was no loan. The Husband accepted that the money from the Z Trust to the Wife at commencement should be treated as an initial contribution by her.[6] The onus was on the Wife to prove that the debt existed in relation to the D Street property.

   [6] At p 495 [5] of the transcript on 5 May 2017.

3. The second related to a loan (acknowledged by the Husband) of $250,000 made to the Husband and Wife from the Wife’s father to assist in their purchase of the H Street and then J Street properties during the relationship.

4. Following the first part of the trial, on 30 May 2017, the Wife’s solicitor wrote to the Husband, saying that she would no longer maintain that the monies received from the Z Trust were to be characterised as a loan.  Rather, she sought to treat this amount as a contribution on her behalf.    On the final day of the trial the Wife formally conceded that she did not seek that the $650,000 of the D Street money be treated as a loan, but rather accepted that it was a contribution made on her behalf.

5. Although in many respects that meant that the issue of whether it was a loan or a gift from the Wife’s parents became a dead issue, it is useful to outline the history of those monies for two reasons.  The first, urged by the Husband, is that the Wife’s original and continued assertion until the end of the trial that the amounts were loans is a matter that he says should be used to assess her general credibility.  The Husband has asserted that the representation that the D Street monies were a loan owing to the Z Trust was fraudulent.  The second is that the history of the use of the funds is useful in understanding how the parties acquired their property.

6. The Wife initially said that she was loaned $650,000 by a combination of two trusts, the U Trust, of which her father was the trustee, and the V Trust, for which her mother was the trustee, for the purchase of the property at D Street City E, New Zealand.  An amount in relation to the D Street money was recorded in the trust records at JMG-99 as at 31 March 2011.  While the amount is recorded as cash provided by the trust it is unclear what status was given to the money at that point.

1. Despite the assertion by the Wife that this amount was a loan, on the sale of the D Street property on 16 February 2007 the Wife retained the full sale proceeds.  No move was made to repay monies to the U and V Trusts, nor does it appear that any request for repayment was made.  These monies were then applied by the Wife to the purchase of the parties’ first jointly owned home in H Street, Suburb I.

2. The first property purchased by the parties together was in H St, Suburb I on 11 October 2006.  In order to make the purchase the Husband, on 8 October 2006, borrowed $250,000 from the Wife’s father.  This was a short-term arrangement reflecting the fact that the bulk of what the parties’ brought into the marriage would not become available until February 2007.[7]  The Husband arranged the money from the Wife’s father and acknowledges that it was a loan.  He asserts that the arrangement for the loan required the repayment of the loan amount, along with the payment of interest at three per cent.  This amount is likewise recorded at JMG-99 as a transfer of AUD$250,000 on 12 October 2006, with each of the two above trusts providing NZ$141,169.31 towards the transfer. 

   [7] At p 194 [15] of the transcript on 2 May 2017.

3. The Husband asserted that, upon realising that they could not afford settlement of the Suburb I property, the parties’ took out a second loan from the Wife’s father for NZ$55,000 on 5 February 2007.  The amount of this loan was set out at JMG-9, in the form of email correspondence between the Husband and the Wife’s father.  In early 2007 the Husband repaid the Wife’s father about $49,000 in relation to this amount.

4. The Wife was unable to say whether or not she told the Husband of the alleged D Street loan at the time that the parties used the proceeds from D Street to purchase H Street.  In fact, she was unable to say that she has ever told the Husband prior to the proceedings that there was an amount loaned in respect of D Street.

5. Exhibit H7 shows an application to Westpac for the loan of funds to purchase H Street.  There was no disclosure by the Wife on these loan documents of a loan amount owing to the U and V Trusts.  Likewise, there was no disclosure of such a loan for the purchase of the J Street property. 

6. Subsequently, the alleged debt to the U and V Trusts was transferred to the Z Trust.  The transfer of the outstanding debts is evidenced by JMG-100 and JMG-101.  These documents are purported to be deeds of assignment of debt from the V Trust (JMG-100) and the U Trust (JMG-101).  Neither of these deeds of assignment are executed by the Wife, despite provision being made for her to do so as an acknowledgment of the assignment.  The amounts recorded from each of the Trusts are a debt advanced as at 31 March 2007 of $503,452 (presumably New Zealand dollars).  This left a total debt of NZ$1,006,904.  This amount appears to be derived from an accumulation of the D Street money with the money that the Husband acknowledges was loaned for the purchase of H Street and then J Street. 

7. On the sale of H Street, the entirety of the proceeds were applied in 2009 to the purchase of a property at J Street, Suburb K (“J Street”).  That is, there was no move to make any repayment for the purported loan and the proceeds were treated as though there was no outstanding loan.  There is no evidence of any request for payment, nor any evidence of provision of security, in respect of the loan, nor even a reference to an assertion that there was a loan in existence at that point.

8. At the time of separation, the Wife received correspondence from her mother’s solicitors, WW Lawyers, on 28 March 2014 (JMG-98).  There, reference was made to loans from the Z Trust.  An amount was asserted as owing of $250,000 from 12 October 2006.  This appears to be an amount referable only to the loan acknowledged by the Husband as coming from the Wife’s father in respect of H Street and subsequently J Street.  The fact that the monies purportedly loaned in respect of the D Street property, and subsequently assigned to the Z Trust, were not recorded in correspondence sent on behalf of a trustee of the Z Trust, also spoke against the existence of those monies as valid loans.

9. The Husband alleged that the Wife had been fraudulent in her representations that the money received for D Street was a loan.  As pointed out by her counsel, the Wife was reliant on, and produced, documents prepared for the Trusts by XX Lawyers that recorded the amount as a loan.  Although not treated by the Wife (and her family) as a loan, the monies appear to have been recorded as a loan.  While this was not persuasive as to the true character of the monies, it also means that I cannot be satisfied that the Wife’s assertion that it was a loan was fraudulently made.

10. Rather, on the testing of the evidence, the concession made by the Wife that it could not be sustained as a loan was appropriately made.

11. In relation to the amount from the Wife’s father that was agreed to be a loan, the Husband says that he made interest payments toward the $250,000, and he accepts that when the parties purchased J Street there was $250,000 still outstanding on the H St, Suburb I property loan from the Wife’s father. 

12. The Husband repaid the Wife’s father $110,000 in December 2009.

13. The Husband claims that the balance of the loan of $250,000 was forgiven at the time that the Wife’s father died,[8] in 2011, and that the Wife relayed to the Husband the fact of the forgiveness of the debt.[9]  This was also asserted at [136] of the Husband’s trial affidavit.  He suggests that this should then be counted as a contribution made on his behalf.  The Wife denies that she had such a conversation with the Husband.  

    [8] At p 48 [5] of the transcript on 7 June 2017.

    [9] At [136] of the Husband’s affidavit filed 17 March 2017.

14. There does not appear to be cogent evidence that after this point it was treated as a loan until separation.  While the Wife appears to say that this is still a debt, as the amount does not appear as an asserted debt on the balance sheet at exhibit C5, nor in her final submissions, there should be no finding that it remains a loan.  It does not, even under those circumstances, equate to a contribution on the part of the Husband (as he submitted it should be), with the gift coming from the Wife’s family.

15. The Husband, in his written submissions, sought to depart from the position he had taken across the trial in relation to the purported loan for D Street.  In submissions he asserted that the Court ought to accept that the D Street finance involved a loan from the V and U Trusts.  This was at odds with the position that he adopted at trial that there was no such loan.  It was a position adopted after the Wife had conceded his asserted position that there was no loan.  Even if he was allowed to depart from his case in such a fashion, whether it was or was not a loan at the point of the commencement of the relationship is of no moment.  If it ever was a loan, it no longer bears that character.  Subsequently, it has become no loan.  It is either a contribution at the start of the relationship, or one later when the ‘loan’ converts to a gift.

Contributions leading up to and following separation

1. As noted before, the division of effort during the relationship meant that the Husband was primarily responsible for the income of the parties, the Wife for the care of the children.

2. The Wife accepts that she did not earn any significant income during the marriage, only briefly working part-time.[10]  She also received NZD$1,200 a month as maintenance for G.[11]

   [10] At p 124 [5] of the transcript on 2 May 2017.

   [11] At p 124 [5] of the transcript on 2 May 2017.

3. Despite the criticism of the Husband as being an absent parent, he was sufficiently involved both for the Wife to travel by herself during the relationship without the children, and was significant involved enough for the parties to have considered the formal adoption of G by the Husband.

4. The Husband says that part of the manner in which he was able to contribute financially related to his investments.  He says that by these he was able to contribute to the real estate purchases by the parties, although the extent to which this was able to be done is not apparent.

5. The value of the parties’ private share portfolios was approximately $1.6m as in 2010.[12]  In 2011 the parties signed up with V Bank.  They were advised to restructure their family affairs in a tax-efficient manner.  Accordingly, the Gadde Family Trust was settled on 4 February 2011, and the Gadde Family Super Fund was also established at this time.[13]  The trustee of the Gadde Family Trust was B Pty Ltd, of which the parties were both directors, and held one share each.  The parties’ personal portfolios were transferred to the trust in June 2011.[14]  This transfer was effected via a notional loan against the Gadde Family Trust in favour of the parties for the value of their share portfolios.  This notional loan value, of $1,723,056.79, is recorded at JMG-56, being the Financial Accounts for the Gadde Family Trust for the financial year ending 30 June 2011.

   [12] At p 530 [10] of the transcript on 5 May 2017.

   [13] See JMG-55.

   [14] At p 530 [5] of the transcript on 5 May 2017.

6. The Husband says that he generated wealth through trading and was the one responsible for its operation, including losses incurred.[15]  The Wife says that whilst she was a director of the corporate trustee, she never sought any financial information until post-separation.  She accepts that she had access to the information regarding the bank accounts, the trust and the super fund.  She did not have access to the trading account.  She began accessing the information post-separation.  Access to the information was not cut off.[16]

   [15] At p 530 [5] of the transcript on 5 May 2017.

   [16] At p 185 [15] of the transcript on 2 May 2017.

7. Throughout almost all of the relationship the Husband was employed by V Bank.  The parties accepted that, through their relationship, their living expenses became higher and higher.  The Husband’s salary at commencement with V Bank was approx. $300,000 p/a.[17]  This was later increased to $400,000 p/a in 2010.[18]  The Husband received four different sources of income from V Bank; a sign-on bonus (referred to above as part of the initial contributions), which incorporated a cash amount and a number of units in the V Bank Group Master Share Plan Incentive Share Unit Awards; a deferred benefits scheme (for example, the Husband stated at [46] of his trial affidavit[19] that on 28 February 2007 he received US$675,000 (AUD$900,000) as his V Bank Bonus, comprising US$528,750 in cash and US$146,250 in deferred benefits); his salary; and a termination payment.  The Husband says that his income, however, decreased part-way through the relationship as a result of the global financial crisis.

   [17] At [4] of the Husband’s trial affidavit filed 17 March 2017.

   [18] At [4] of the Husband’s trial affidavit filed 17 March 2017.

   [19] At [46] of the Husband’s affidavit filed 17 March 2017.

8. The Husband stated that the deferred benefits vested over time, and were tied to the V Bank share price.

9. The Husband also received $238,494 in deferred benefits that were received between 2014 and 2017. 

10. The portfolio as held by the Gadde Family Trust was transferred from V Bank to C Partners on 22 November 2012.[20]  At this time, the portfolio held a value of $846,813.[21]

    [20] At p 531 [45] of the transcript on 5 May 2017. At [144] in the Husband’s affidavit filed 17 March 2017. See JMG-64.

    [21] At p 531 [45] of the transcript on 5 May 2017. At [144] in the Husband’s affidavit filed 17 March 2017. See JMG-64.

11. The Gadde Family Trust account at C Partners fluctuated over time.  JMG–97 records a series of withdrawals and deposits made on the Gadde Family Trust account at C Partners from 30 July 2013 to 6 June 2014:

Transaction Type:	Amount in AUD:	Date:
Withdrawal	(11,149.80)	30 July 2013
Withdrawal	(32,881.00)	9 August 2013
Withdrawal	(7,764.00)	29 August 2013
Cash Transfer Out	(494.34)	12 September 2013
Cash Transfer Out	(57.89)	12 September 2013
Withdrawal	(35,129.98)	5 November 2013
Withdrawal	(16,311.00)	19 November 2013
Withdrawal	(14,750.00)	4 December 2013
Withdrawal	(6,192.00)	13 December 2013
Withdrawal	(7,308.00)	20 December 2013
Withdrawal	(27,980.00)	23 January 2014
Contribution	130,000.00	26 March 2014
Withdrawal	(19,740.00)	5 May 2014
Withdrawal	(21,677.00)	8 May 2014
Withdrawal	(1,500.00)	13 May 2014
Withdrawal	(13,333.34)	15 May 2014
Contribution	90,000.00	29 May 2014
Withdrawal	(23,125.78)	June 2014

1. Noting that the parties separated in March 2014, a C Partners Valuation Report, showed the total market value of the account as at 17 March 2014 of $129,006 (JMG-87).

2. By JMG-87 it was suggested that this balance was the result of significant trading losses, to be assessed by virtue of the holdings having a total cost of $232,100 and a loss against those of $103,094.  The Husband did not agree to the characterisation.  Whatever the case, the fact of losses at this stage is not a matter of significance, absent evidence to demonstrate that any such loss was the product of conduct constituting waste.  There was no such evidence.

3. It was accepted by the parties that the position of the Gadde Family Trust account at C Partners at the time of the trial, being in May 2017, was $122,794.98.[22]

   [22] At p 533 [15] of the transcript on 5 May 2017.

4. The Husband was terminated from V Bank in September 2013, shortly before separation.  He continued to receive payments following this termination.  This was the money that the parties had to live on pending the finalisation of the sale of the J Street property.

5. JMG-107 set out the termination payments to be made to the Husband, totalling $118,302.07 after tax. 

6. The Husband says that there is outstanding tax of $89,296.75 for the year ending June 2014, supported by JMG-106, which contains a Notice of Assessment of 20 August 2015.  That notice includes the amount of $238,494 for an employee share scheme.  JMG-107 shows that the Husband’s termination payment was $118,000 net of tax.  Annexure JMG-72 was the schedule for the vesting of this payment, with major payments of approximately $30,000 due on 31 March 2013, 2014 and 2015. These appear to be after tax payments. The Husband contended that as his 2014 income was paid into the joint account, his outstanding income tax on this income ($89,000 plus $16,000 in penalties) should be paid from the joint account also (item 73 in exhibit C2).  However, it remains unclear when the Husband received the shares, or the use to which they were put.  While the continuing payment of family expenses post-separation from income derived pre-separation would constitute a strong argument for the sharing of the tax liability, the poor state of the evidence as to the extent to which the income (including the shares) was received during that period of the separation, or used in this fashion, rather than solely for the Husband post-separation, means that no such allowance should be made.

7. In October 2013 the Husband commenced working with M Pty Ltd, a UK-based firm.  The Husband was engaged on the basis that he did not receive a salary but would be paid 40 per cent commission.  He resigned from the role in July 2014, having earned $68,782 net.[23]

   [23] At [214] of the Husband’s trial affidavit filed 17 March 2017.

8. The Husband then commenced working at EE (Aust) Pty Limited (“EEPL”).  This position was also unsalaried, with remuneration based on commission.  The Husband stated by way of his trial affidavit that a Mr ZZ, the Husband’s employer at EEPL, is now seeking $250,000 from the Husband for portfolio losses incurred by the Husband.[24]  This amount was neither pressed in the balance sheet at the end of the proceedings, nor was any persuasive evidence led to support it.  It is not a debt established in the proceedings.

   [24] At [215] of the Husband’s trial affidavit filed 17 March 2017.

9. The parties also held the Gadde Family Super Fund account at C Partners (JMG-88) which showed a market value as at 17 March 2014 (about the time of separation) of $70,231.

10. At the early stage of their separation the parties were still generally financially pooling their resources.  They jointly used their funds from the sale of their property and the use of the Husband’s income for their living expenses.  The significant exception to this was the Wife’s receipt of funds from the AA Trust.

11. The Wife and the children were able to remain in the J Street property pending settlement and following separation.  On 13 May 2014 a $31,830 quarterly mortgage repayment was made from the joint account for J Street.[25]

    [25] At p 178 [10] of the transcript on 2 May 2017.

12. The parties agree that in May 2014 the Husband contributed $96,000 into the Gadde Family Trust account.[26] 

    [26] At p 160 [30] of the transcript on 2 May 2017.

13. The Husband’s M Pty Ltd income went into the joint account post-separation until the end of September.[27]

    [27] At p 133 [45] of the transcript on 2 May 2017.

14. In December 2014[28] the Husband created the “EEPL fund” at C Partners, being an account held separately to the Gadde Family Trust account.  He deposited $20,000 from the proceeds of the R Town property to start the fund.  The parties had separated by this stage and the Wife was not privy to the Husband’s activities in this respect. 

    [28] At [241] of the Husband’s trial affidavit of 17 March 2017.

15. The Husband says that he entered into an arrangement with his mother on 21 January 2015, where she deposited $250,000 into that account for the acquisition of DD Ltd shares.[29]  The agreement, however, states that it was a loan to be repaid just over one month later on 28 February 2015.  This agreement was produced at JMG-127.  The Husband gave no evidence explaining why the money had not been repaid in accordance with the agreement.  The Husband says that he entered into a similar arrangement with Mr OO, wherein Mr OO deposited $389,290 in May 2015 into the EEPL fund as held at C Partners by the Husband.[30]  However, he went on to describe the arrangement with Mr OO as being one in which Mr OO contributed the capital, the Husband the skill, and in which they were to share equally the profits and losses.

    [29] At [243] of the Husband’s trial affidavit of 17 March 2017.

    [30] At [249] of the Husband’s trial affidavit of 17 March 2017.

Property position as at separation

1. By exhibit C3 the parties set out their areas of agreement and disagreement as to the assets, liabilities and financial resources held as at their separation on or about March 2014.  A number of the areas of disagreement had resolved by the end of the trial.  Only those areas of agreement and disagreement that are significant to the trial are set out below.  In particular, those items that have only a small fractional relationship to the pool have not been reproduced, as they have no significant capacity to impact on the discretionary exercise.

2. The agreed assets were as follows:

   a)Equity from the sale of the former matrimonial home at J Street, Suburb K of $1,679,630.14 (although this did not become available to the parties until later in the year);

   b)A German motor vehicle that had been previously given to the Wife by her mother, and was retained by the Wife at separation and subsequently traded on another vehicle, valued at $20,000;

   c)Equity held by the Husband in the R Town property at $50,000;

   d)Deferred awards from V Bank, at that time yet to vest, at $355,398;

   e)An amount held in the bank account of the AA Trust of $91,728;

   f)Artwork – (Wife’s possession) worth $17,000;

   g)Jewellery and household items in the possession of the Wife at $32,650;

   h)Household items in the possession of the Husband at $3,320;

   i)A deposit that had been paid on a property at O Town for the Gadde Family Trust of $56,250; and

   j)An interest in the O Town Pub held by the Gadde Family Trust at $115,631.55.

1. The assets that were not agreed were as follows:

   a)Money in a joint Westpac account 5318 at 25 August 2015.  The Wife asserted the balance to be $50,000, the Husband, supported by the bank statement at JMG-78 asserted a balance of $2,116 as at 13 March 2014.  The lower value should be accepted; and

   b)A share portfolio valued by the Wife as at 30 June 2014 at $387,000 and by the Husband as at 17 March 2014, reliant upon JMG-87, being a statement of holdings in the C Partners Valuation Report at $129,006.

2. The agreed liabilities were as follows:

   a)The Husband’s income tax liability for the 2013 financial year at $63,417.88;

   b)An American Express credit card at $34,827;

   c)The Husband’s Westpac Australia Visa card at $11,570.55;

   d)The Wife’s Westpac Earth Platinum Visa at $7,256.81; and

   e)The Husband’s Westpac NZ Mastercard at $6,341.42.

3. The liabilities that were not agreed were as follows:

   a)Provision for the tax liability for the V Bank deferred awards in the agreed assets set out above.  The Wife said that $106,619.40 should be allowed, the Husband $142,159.20;[31]

   b)Initially there was a dispute as to whether the Wife owed the Z Trust $650,000.  At the end of the proceedings the Wife no longer pressed this amount as a debt as opposed to a contribution on her behalf, and so the item was no longer a disputed debt;

   c)Loans to the Husband from his mother of $40,000[32] and $3,000 (the $3,000 having been repaid by the end of the trial); and

   d)Loan to the Husband from Mr AB at $20,000 (the $20,000 having been repaid by the end of the trial).

   [31] It should be noted that the question of this debt as being included in the pool has been otherwise dealt with and so the disagreement is not of significance to determining the proceedings.

   [32] p 221 [5] of the transcript on 3 May 2017 – Husband asserted this loan was used to pay the quarterly mortgage repayment on 13 May 2014.

4. The parties agreed on their superannuation interests as at separation as follows:

   a)A joint SMSF Gadde Superfund at $70,231;

   b)The Husband’s AMP Signature Superannuation at $78,414.96; and

   c)The Wife’s MLC superannuation entitlement at $1,000.

5. The Husband also asserted financial resources at an unknown level to the benefit of the Wife from the AA Trust, Z Trust and V Trust. 

6. The most significant asset at the time of the end of the relationship was the parties’ home at J Street, which resulted in net proceeds of sale of $1,679,630.  It is important to identify the manner in which the proceeds have been used.

7. The first deposit, of $75,000, was received at exchange of contracts.  A further deposit, of $100,000, was made several days later. 

8. On 20 March 2014 the Husband deposited the $175,000 into his Westpac Account no. 690408.  He subsequently transferred $130,000 into the Gadde Family Trust account at C Partners on 24 March 2014 (see JMG-97) but accepted that he retained $45,000.  Of this he used $20,000 to repay Mr AB, $3,000 to repay his mother for mortgage repayments, $9,700 for his credit card, and the balance on living expenses. 

9. On 3 July 2014 a payment of $20,874.10 was made from the Gadde Family Trust account at C Partners into the joint Westpac account.

10. The parties continued to use their joint funds for their living expenses.  Payments for rent, the Wife’s car, credit card payments, a $5,000 monthly living allowance, moving expenses and the bonds for the parties’ rental properties were made from the joint account.

11. On 10 July 2014 the Wife received the proceeds of the term deposit from the AA Trust of NZD$117,000.[33]  The Wife did not disclose to the Husband that she was receiving this, even in the context of discussion of what should happen with the J Street proceeds.[34]

    [33] At p 166 [15] of the transcript on 2 May 2017.

    [34] At p 167 [45] of the transcript on 2 May 2017.

12. On 17 July 2014, $49,975 was deposited into the joint Westpac account by Mr X.  The Wife disputed this as a joint liability, as she stated no one communicated the loan to her, and that she would never have borrowed from Mr X.[35]  JMG-109 was a document titled “Loan Agreement”, setting out an agreement for Mr X to loan Mr Gadde the sum of $50,000 repayable on or before 8 August 2014. Following this deposit a number of payments were made out of the joint account:

    a)$15,000 was applied from the joint account on 18 July 2014 to the parties’ Amex.[36]  A payment of $604 was made to Suburb I Council on 18 July 2014.[37]

    b)On 21 July 2014 the Wife transferred $4,007 to her credit card from the joint account.[38]

    c)On 21 July 2014, $2,250 was applied to the parties’ mortgage (the mortgage was structured in two components, there was a quarterly payment and $2,250 per month).

    d)On 22 July 2014, $10,000 was transferred to the Wife for her first months’ rent and on 28 July 2014 $5,000 was paid to her as an allowance from the joint account.[39]

    [35] At p 169 [25] of the transcript on 2 May 2017.

    [36] At p 176 [20] of the transcript on 2 May 2017.

    [37] At p 177 [15] of the transcript on 2 May 2017.

    [38] At p 176 [25] of the transcript on 2 May 2017.

    [39] At p 176 [35] of the transcript on 2 May 2017.

13. There is nothing to indicate that the X money was used other than for the proper living expenses of the parties pending the receipt of the settlement monies.  It is properly a debt for which both parties are responsible.

14. J Street settled in August 2014.

15. The parties each received $50,000 at the time of settlement and they also paid off another credit card. While they disagree about which card was paid off, and in what amount, nothing turns on this difference as, whatever the payment was, there is no evidence to suggest that it did not relate to the properly incurred living expenses of the parties. The parties paid the Husband’s 2013 income tax, and received three month’s rent each,[40] to a value of $32,500 for the Wife and $11,780 for the Husband. At this time, the balance of $1,208,000 was paid into a joint account with NAB.[41]

    [40] At [221] of the Husband’s affidavit of 17 March 2017.

    [41] At [221] of the Husband’s affidavit of 17 March 2017.

16. Following this, the Husband accepted he received a further $10,000 for rent.  The parties also accepted that three additional distributions were made, of $25,000 and $20,000 to the Wife, and $8,000 to the Husband.

17. On 9 March 2015 the remainder of the funds from J Street were frozen in a controlled moneys account.

18. The parties accepted, by way of their joint balance sheet, a series of further distributions, being $25,000 received by the Husband pursuant to Orders made 27 August 2015, $64,830 received by the Husband by way of partial property distribution and $60,000 received by the Husband by way of interim costs pursuant to Orders of Justice Stevenson made 23 December 2016, and at the same time $60,000 interim costs to the wife.  A further interim costs order of $40,800 was made to the Wife on 22 April 2016 pursuant to the Orders of Justice Stevenson.

19. The proceeds were also used to settle the O Town land and hotel, at a value of $518,736,[42] this property being held by the Gadde Family Trust.

    [42] At JMG-121.

20. The Wife received an interim property distribution sourced from the proceeds of the sale of $300,000 on 27 July 2016.

21. Following the settlement of the J Street property the Husband arranged for the Wife and the children to move into an apartment in Suburb N.  The rent for Suburb N was $2,500 a week.  The Wife says the arrangement was that the Husband would pay it from his funds (presumably income) while the Husband sought to pay the expenses from the parties’ joint funds.  The Wife accepted that the first month of rent for the Suburb N apartment came from their joint account.[43]

    [43] At p 164 [20] of the transcript on 2 May 2017.

22. The Husband said that it was unreasonable for the Wife to expect him to have paid for the lease for 12 months when he had no fixed income, while the Wife stated she had no recollection of any agreement to pay the lease from the joint account, and said she did not know the details of the Husband’s income.

23. The Husband said that a second condition of signing the lease was that he would be permitted to manage investments and financials for that period, in order to pay the lease.  The Wife disagreed, stating that the Husband received letters from Barkus Doolan requesting J Street proceeds be held on trust.[44]

    [44] At p 164 [5] of the transcript on 2 May 2017); at p 133 [30] of the transcript on 2 May 2017.

24. The Husband started to receive payments from EEPL, having commenced working there on a commission only basis.  He continued to receive V Bank payments.

25. On 16 September 2014 the Husband received $30,000 from EEPL.[45]  On 23 September 2014 he received $4,000 from V Bank[46] and on 26 September 2014, a further $3,000, although the source is not identified.[47]

    [45] At p 29 [5] of the transcript on 7 June 2017.

    [46] At p 29 [5] of the transcript on 7 June 2017.

    [47] At p 29 [15] of the transcript on 7 June 2017.

26. In November 2014, the Wife received $25,000 for rent from the joint account.[48]

    [48] At p 179 [5] of the transcript on 2 May 2017

27. In November 2014, the Husband received $26,000 from EEPL.[49]

    [49] At p 29 [20] of the transcript on 7 June 2017.

28. In November 2014 the Husband sold a beach house part owned by him and his mother from which he received net $50,255.  He deposited $20,000 into the C Partners fund.[50]

    [50] At p 29 [40] of the transcript on 7 June 2017.

29. In December 2014, the parties jointly paid $527,000 from the National Australia Bank account to settle the O Town property.[51]

    [51] At p 190 [5] of the transcript on 2 May 2017.

30. In December 2014, the Husband offered to release further money to the Wife for her to pay rent.  She refused, and demanded that he release money from his personal account instead.[52]  The Husband then caused his mother to pay $5,000 towards the Wife’s rent.  Although not aware of the source, the Wife accepts the payment was made to the real estate agent.[53]

    [52] At p 179 [10] of the transcript on 2 May 2017.

    [53] At p 180 [5] of the transcript on 2 May 2017.

31. On 5 December 2014 the Husband received a further payment of $7,000.[54]

    [54] At p 29 [20] of the transcript on 7 June 2017.

32. From December 2014 to 9 March 2015 the Wife refused money from the joint account,[55] despite the Husband’s offers to pay her rent from the joint account.  She says that she was concerned that the amount of rent that was being paid was eroding their property.  Her position was that she required the Husband to pay the sums out of money that was not joint.

    [55] At p 181 [35] of the transcript on 2 May 2017.

33. The Husband agrees that he received $60,191 from V Bank in 2015.[56]

    [56] At p 36 [5] of the transcript on 7 June 2017.

34. The Wife commenced proceedings by filing her initiating application on 28 January 2015. They were listed for 9 March 2015.

35. On 8 March 2015 the Husband emailed the Wife and her family members Mr CD, Mr DE and Ms Y saying that if the Wife insisted on going to court, he would: “spend the rest of today and tonight preparing my affidavit, engage legal counsel, pull my first corporate deal and cancel my two day investor roadshow on Wednesday/Thursday.”  Notwithstanding that he was granted a six week adjournment on 9 March 2015, the Husband followed through on the threat and pulled the deal, justifying the step on the basis that he was too busy preparing subpoena-related material.[57]

    [57] At p 500 [35] of the transcript on 5 May 2017.

36. Orders were made in March 2015 for spousal maintenance payments to be made to the Wife at $3,800 per week for the period 10 March 2015 to 21 April 2015, to a total of approximately $21,000.

37. On 13 May 2015 the Husband sent an email to both his mother and the Wife, threatening not to return to work until interim financial support had been resolved.[58]  Then, on 15 May 2015, the Husband sent an email to the Wife saying he had “severe mental issues”.[59]

    [58] Exhibit W22, also at p 500 [10] of the transcript on 5 May 2017.

    [59] At p 497 [15] of the transcript on 5 May 2017.

38. From May to July 2015 the Husband withdrew $66,596.80 from the C Partners account.[60]

    [60] At p 36 [5] of the transcript on 7 June 2017.

39. On 4 June 2015, the Husband stated that he caused the ‘EEPL fund’ to be transferred from C Partners to an account with EE Limited in the name of Mr Gadde, Client Number …01. (This account including the monies sourced from Ms W and Mr OO). (Repeat [101])   According to the Husband, the account was valued at $583,000 at the time of the transfer.[61]

    [61] At [250] of the Husband’s trial affidavit of 17 March 2017.

40. The Wife confirms this transaction as occurring on 4 June 2015 to a value of $582,058 (at exhibit 57 of JG).

41. The Husband then withdrew from the EEPL fund, and deposited into his personal account, $89,000, from 11 June 2015 – 2 December 2015 and $197,000, from 3 December 2015 – 3 July 2016.[62]  He stated that the monies were spent on legal fees, living expenses and repayment of personal debts.[63]

    [62] At [145] of the Wife’s affidavit of 23 November 2016.

    [63] At p 539 of the transcript on 5 May 2017.

42. The Husband says on 15 June 2015,[64] his mother paid $15,000 towards the Wife’s rent.[65]  JMG-165 showed two payments from the Husband’s mother to the Wife, both occurring on 23 June 2015, totalling $15,000. JMG-166 was an email chain between the Husband and a real estate agent, Mr EF, who confirmed the receipt of the money to cover rental expenses for the period from 25 May 2015 to 5 July 2015.  The Wife says that she did not know about these payments.  Mr W was not challenged as to the fact of loaned monies to the Husband.  The money was paid for the support of the parties.  While it was paid in the circumstance that the Husband was, by that stage, significantly in arrears for the urgent spousal maintenance he was to pay the Wife, the subsequent order for the payment of arrears caters for that fact.  It is appropriate the parties share the liability for that loan.

    [64] At p 534 [25] of the transcript on 5 May 2017.

    [65] At p 223 [35] of the transcript on 3 May 2017.

43. On 15 July 2015 Orders were made by Justice McClelland, requiring the Husband to sign an authority to C Partners, and to do all things necessary to cause payments of $27,239.04 (as arrears for payments due to the Wife pursuant to Orders made 9 March 2015 and 17 March 2105) and $45,000 for rental costs for six months to be made to the Wife by B Pty Ltd as trustee of the Gadde Family Trust.  Orders provided that a Registrar could sign the documents failing the Husband doing so.

44. On 15 July 2015 the Husband signed an authority to give effect to the above Orders, directed to selling shares as to raise the sum of $45,000.[66]  However, on 20 July 2015, C Partners wrote to the Wife, advising that the Husband had revoked his authority.  Absent the Husband’s authority, they declined to make the payment to the Wife.  This resulted in a dispute involving C Partners in an attempt to effect the execution of Justice McLelland’s Orders.  An interpleader application was filed by C Partners in New Zealand.

    [66] At p 507 [5] of the transcript on 5 May 2017.

45. Ultimately, in the interpleader proceedings, an adverse costs order was made against the Gadde Family Trust in favour of C Partners for $34,000.[67]  This was the sequelae to the Husband’s non-compliance with the Orders of Justice McClelland.

    [67] At p 507 [15] of the transcript on 5 May 2017.

46. On 31 August 2015 the Husband received payment of $25,000 for legal costs to FG Attorneys from the proceeds of J Street.[68]

    [68] At p 34 [25] of the transcript on 7 June 2017.

47. Between 3 December 2015 and 12 July 2016 the Husband withdrew $197,000 from the EEPL account.[69]

    [69] At p 27 [5] of the transcript on 7 June 2017.

48. On 23 December 2015 the Husband received $60,000 for the purpose of payment of legal costs.  The Husband also received a payment of $64,830 as a partial property distribution at this time, and the Husband was to pay $16,830 to the Wife for costs.

49. The Husband refused to pay the $4,950 of his share for the report of Dr P.  The cost was eventually paid from the joint account.[70]

    [70] At p 34 [45] of the transcript on 7 June 2017; at p 30 [5] of the transcript on 7 June 2017.

50. On 27 July 2016 the Husband received $111,000 from V Bank which was deposited in the EEPL account.  He withdrew $81,710 and spent it on legal fees, retaining $29,290.[71]  He says that he repaid his Mother between $10,000 and $15,000 and spent $8,000 on a car deposit.[72]

    [71] At p 27 [20] of the transcript on 7 June 2017.

    [72] At p 529 [10] of the transcript on 5 May 2017.

51. On 15 July 2016 the Husband used B Pty Ltd to purchase a motor vehicle from at $41,220.  He accepted that this was a breach of Orders made by Justice McClelland on 15 July 2015 being an injunction against incurring debts.

52. Orders of 27 July 2016 required the parties to cause the payment of $300,000 to the Wife.

53. Further interim Orders were made on 15 August 2016.  The Husband complained that the Orders prevented him from trading on the EEPL account, placing that property in peril.

54. The Husband, on 18 August 2016, received an email to the following effect from Ms NO (the Wife’s lawyer):[73]

    We submitted you a form of order that our client would agree to so as to enable you to trade on the [EEPL] account.  If you wish us to submit that order to the court, it can be made by consent and you can trade on that account.

    [73] Exhibit W25.

55. The Husband replied:

    I need some money released to pay my outstanding rent, living costs, etcetera and to do a drug test.  This is not your client’s money.  It belongs to my mother and [Mr OO].  That the [V Bank] money primarily went to legal fees is entirely your client’s fault for refusing to respond to any of my offers or engage with Mr GH in good faith.  Let me know re my son today.  You have done more than damage there already.

56. The Husband accepted that he had received an email from Ms NO stating he had not signed the orders to permit the release of the $300,000 as required by 27 July 2016 Orders.[74]

    [74] At p 526 [35] of the transcript on 5 May 2017.

57. The Husband received $10,000 on 30 December 2016 from the Wife as a release of funds.  On 12 January 2017, a transfer was made from the Gadde Family Trust to the Husband with the Wife’s consent of $9,292.

58. In March 2017, the Husband received the last of the V Bank vestings, being an amount of $29,600.[75]

    [75] At p 39 [20] of the transcript on 7 June 2017.

59. In April 2017, the Husband received a further $10,000 from the J Street proceeds.

60. On 30 April 2017 the Husband messaged the Wife (exhibit W6) threatening to expose fraud unless the matter settled.[76]

    [76] At p 319 [15] of the transcript on 3 May 2017.

61. The Husband says that, as at 5 May 2017, the Gadde Family Trust had a portfolio value of $122,794.98, comprising a single investment in DD  Ltd.

Assets at trial

1. In submissions at the end of the trial the parties narrowed the disputed items on the balance sheet, setting out their areas of agreement and disagreement in two aide memoirs handed up on 21 July 2017, based on exhibit C5.

2. There was no significant matter of dispute regarding the assets of the parties as at the time of the trial.  While there was a lack of agreement regarding the artwork held by the Husband at the start of the relationship, this is not a matter of significance given the approach to be taken to those items disposed of by the Husband, as indicated previously.  While there was at face value also a disagreement regarding the value of the AA Trust as an asset, there was acceptance that there were no longer funds related to that item as they have been expended.  That is, on any view they could not be taken to be a current asset.

3. That leaves the current asset position at the close of the trial as total net assets of $1,729,847 with the Wife holding $268,016 net and the Husband holding $327,394 net.

1. That each party notify the other immediately of any serious injury or illness suffered by L whilst with that party.

2. That each party notify the other not more than 24 hours after any change to their address and/or landline or mobile telephone numbers and/or theirs and L's email addresses.

3. That school holidays for the purpose of these Orders commence at 9:00am on the Saturday immediately following the last day of the school term and conclude at 5:00pm on the Sunday immediately prior to the commencement of each school term.

4. That each party notify the other of the address and telephone number of the place where L will be staying during holidays spent away from their respective residences, no later than 7 days prior to the commencement of any holiday period and provide the other party with a copy of any itinerary with departure and return details.

OVERSEAS TRAVEL

1. That pursuant to section 65Y(2) of the Family Law Act, the Mother permitted to take the children out of the Commonwealth of Australia during the periods of time the children are living with her pursuant to these orders provided that the Mother provides to Father written details of any overseas holiday not less than 7 days prior to the intended day of departure including:

   a.dates of departure from or return to Australia and/or New Zealand;

   b.a copy of the itinerary provided by the travel agent or airline;

   c.a copy of the return airline tickets (including any electronic ticket or booking).

Changeover

1. Whilst ever the Mother and L remain living in Australia, unless otherwise agreed in writing between the parties the Father shall to collect L at the commencement of his time with him from school or from the Mother's home and the Mother or her nominee collect L from the Father's home.

Restraints

1. Each party is restrained from:

   a.Doing any act or thing or causing any other person to do any act or thing, and use his and her best endeavours not to permit any other person to do any act or thing to denigrate the other party in the presence or hearing of the Children.

   b.Showing any documents relating to these proceedings and discussing these proceedings with or within the hearing of the Children.

2. The Father is hereby restrained from consuming illicit drugs 24 hours prior to and during the periods of time the child is living with him pursuant to these orders or as otherwise agreed between the parties in writing.

COUNSELLING

1. That the parties do all acts and things to facilitate L undertaking therapeutic counselling at the OP Group and to the extent required by the counsellor engage in the said counselling process as required from time to time and follow the recommendations of the counsellor.

THE COURT NOTES:

A.The Mother has serious concerns as to the Father's parenting capacity given the Father's conduct towards the Mother in the presence of the children.

B.The Mother has concerns for the safety of the children if the Father was to spend extended of time with the Father, particularly having regard, to what the Mother would contend is the Father's dependence upon illicit drugs.

Annexure B

Husband’s Minutes of Parenting Orders Sought – 29 April 2017

Final Orders Sought

THE COURT NOTES THE FOLLOWING DEFINITIONS:

"The Respondent' means Mr Gadde born on … 1972.

"The Applicant' means Ms Gadde born on … 1974.

"L" means L Gadde born on … 2009.

"G" means G Gadde born on … 2004

THE COURT ORDERS THE FOLLOWING:

Orders Relating to L:

1. That all previous parenting orders be discharged.

2. That the parties have equal shared parental responsibility for L.

3. That L live with the Applicant.

4. That L spend time with the Respondent as follows:

   a.In term two of the 2017 school year:

   i.Each Sunday from 9:00am to 5pm.

   ii.Each Thursday from the conclusion of school until the commencement of school on Friday.

   b.In term three of the 2017 school year:

   i.Each alternate Saturday at 8:30am until Sunday at 4pm.

   ii.Each Thursday from the conclusion of school until the commencement of school on Friday.

   c.On and from term four of the 2017 school year:

   i.Each alternate week from Friday at the conclusion of school until 4pm on Sunday.

   ii.Each Thursday from the conclusion of school until the commencement of school on Friday.

5. That for the purposes of Order 4 hereof where change over does not occur at the child’s school the same shall occur at the Applicant's residence in the morning and the Respondent’s residence in the afternoon.  For the avoidance of doubt the Applicant/Respondent is to deliver the child to the front door of the other party's residence.

School holidays (excluding Christmas)

1. That Order 4 hereof be temporarily suspended during the school holiday period to give effect to Orders 7 and 8 hereof.

2. That, by agreement, L spend time with the Respondent for one week in each school holiday period (excluding the Christmas holiday period) for one block period of seven consecutive nights.

3. That in the event that the parties are unable to agree as to which week the time pursuant to Order 7 is to occur then L shall spend time with the Respondent in week one of the school holiday period in each odd numbered year and in week two of the school holidays in each even numbered year.

Christmas School Holiday Period

1. That Order 4 hereof be temporarily suspended during the Christmas school holiday period to give effect to Orders 10 and 11 hereof.

2. That L spend time with the parties in the Christmas school holiday period in a three yearly cycle as follows:

   a.In Year One, being on and from 2017:

   i.With the Applicant in the Christmas school holiday period from the conclusion of school on the last day of term four until midday on Christmas Day;

   ii.With the Respondent from midday on Christmas Day until 2 January;

   iii.With the Respondent in one period of 5 consecutive nights in the final week of the Christmas school holiday period commencing at 9am on the first day and concluding at 4pm on the final day; and

   iv.With the Applicant at all other times during the Christmas school holiday period.

   b.In Year Two, being on and from 2018:

   i.With the Respondent in the Christmas school holiday period from the conclusion of school on the last day of term four until midday on Christmas Day;

   ii.With the Respondent in one period of 5 consecutive nights in the final week of the Christmas school holiday period;

   iii.With the Applicant at all other times during the Christmas school holiday period.

   c.In Year Three, being on and from 2019:

   i.With the Respondent in the Christmas school holiday period from the conclusion of school on the last day of term four until midday on Christmas Day;

   ii.With the Respondent in one period of 5 consecutive nights in the final week of the Christmas school holiday period;

   iii.With the Applicant at all other times during the Christmas school holiday period.

3. That, in accordance with the further orders detailed herein regarding travel, the parties be at liberty to spend time with the child overseas and/or interstate when the child is in their care pursuant to Order 10 hereof.

Easter

1. That Orders 4 and 6-8 be temporarily suspended during the Easter school holiday period to give effect to Orders 13 and 14 hereof.

2. That L spend time with the Respondent each Easter long week in each even numbered year from the conclusion of school on Thursday until 4pm on Monday.

3. That L spend time with the Applicant each Easter long week in each odd numbered year from the conclusion of school on Thursday until 4pm on Monday.

Child's Birthday

1. That in the event that L's birthday falls on a day where L is scheduled, pursuant to these orders, to spend time with the Respondent then the child shall spend time with the Applicant for four hours by agreement and failing agreement  from 3:00pm to 7pm.

2. That in the event that L's birthday falls on a day where L is scheduled, pursuant to these orders, to spend time with the Applicant then the child shall spend time with the Respondent for four hours by agreement and failing agreement from 3:00pm to 7:00pm.

Respondent's Birthday

1. That in the event that the Respondent's birthday falls on a day where L is scheduled, pursuant to these orders, to spend time with the Applicant then L shall spend time with the Respondent for four hours by agreement and failing agreement from 3:00pm to 7:00pm.

Mother's Birthday

1. That in the event that the Applicant's birthday falls on a day where L is scheduled, pursuant to these orders, to spend time with the Respondent then L shall spend time with the Mother for four hours by agreement and failing agreement from 3:00pm to 7:00pm.

Mother's day

1. That in the event that Mother's Day falls on a day when, pursuant to the orders, L is scheduled to spend time with the Respondent, then such time will be suspended and L shall spend time with the Applicant from 9am to 5pm.

Father's Day

1. That in the even that Father's Day falls on a day when, pursuant to these orders, L is scheduled to spend time with the Applicant then such time will be suspended and L shall spend time with the Respondent from 9am to 5pm.

Mother's Annual holiday

1. That during the time that the Applicant is overseas or interstate without L in her care, L shall spend each weekend for the duration of that period with the Respondent from the conclusion of school on Friday until 4pm on Sunday.

Special Days (Generally)

1. That in the event that a special occasion occurs when L is scheduled to spend time with the other parent pursuant to these orders then:

   a.The requesting party shall provide written notice no later than two weeks prior to the special occasion of their intention to spend time with L; and

   b.The other party shall agree to allow L to spend time with the requesting party on the special occasion from 9am to 5pm.

2. That the parties are permitted make no more than two requests in accordance with Order 22 on an annual basis.

3. That for the avoidance of doubt a special occasion may be defined as a family member visiting Sydney, a family member’s birthday party or wedding.

Communication

1. That each party shall immediately notify the other of any serious injury or illness or hospital admission of L whilst in the care of that party.

2. That each party be permitted to communicate with L by telephone when L is not in their care [between the hours of 8:00am and 8:00pm] and the party who has the care of L shall do all acts and things as may be necessary to facilitate such communication.

3. That for the purposes of Order 26 hereof each parent shall provide L with privacy whilst communicating with the other parent and will not engage with the other party during that telephone communication other than for the purposes of facilitating same.

4. That the Applicant shall send an email to the Respondent on Sunday of each week outlining any special events and activities that the children will be involved in that week.

Extra-curricular and Schooling

1. That the Applicant be and is hereby restrained from enrolling L in any sport or extra-curricular activity which occurs during the Respondent's time with L without first obtaining the Respondent's written consent.

2. That the parties shall first agree in writing to enrolling the child in any and all extra­ curricular activities.

3. That both parties be at liberty to attend L's school, parent- teacher interviews, school concerts, special events and school and non-school related extra-curricular activities, sport training and competitions.

4. That the Applicant sign all authorities and do all acts and things that may be required to authorise any school L attends from time to time to forward to the Respondent copies of all school reports, photographs and notices/newsletters.

Overseas and Interstate Travel

1. That pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth) each party is permitted to travel overseas with L during any periods that L is living with that party pursuant to these Orders or at such other times as the parties agree upon in writing.

2. That for the purpose of the preceding Order the party proposing such travel shall give the other party no less than thirty (30) days' written notice ("the Notice") of the intention to travel and shall provide to the other party:

   (a)The particulars of such holiday including a copy of the travel itinerary, country(ies) to be visited and the periods of such proposed travel; and

   (b)Copies of the confirmed return airline tickets and details of flights and accommodation.

3. That the parties shall do all acts and things to ensure the child hold a valid passport and do all things necessary to facilitate the issue of any required visas or any other requirement of the authorities of the destination country(ies), any fees for which shall be paid by the travelling parent.

4. That the party holding the child's passports and/or visas and/or other required travel document from time to time shall deliver same to the party proposing to travel at least two (2) weeks prior to the proposed travel, with the Applicant to retain the child's passports at all other times.

Other

1. That from 1 January 2021 (when L is aged 12) provided the mother and father are residing in the same city and country, L shall spend equal time with each parent on an

The child G:

1. That all previous parenting orders be discharged.

2. That G shall live with the Applicant and spend time with the Respondent as follows:

   a.Whilst the parties are engaging in family therapy pursuant to these orders, G shall spend time with the Respondent in accordance with her wishes.

   b.In the event of a breakdown of family therapy, or G not being required to engage in family therapy (as directed by Mr GG), the Respondent shall spend time with G as agreed between the parties and failing agreement:

   i.Each alternate Sunday (on the same weekend as L) from 1:00pm to 5:00pm.

   ii.For three days during each of the school holiday periods and failing agreement, the first week in each even numbered year and the second week in each odd numbered years.

3. That where change over does not occur at G's school the same shall occur at the Applicant's residence.  For the avoidance of doubt the Respondent is to take G to the front door of the Applicant's residence.

4. That G may, in accordance with her wishes, spend time with the Respondent at any all time that L is scheduled to spend time with the Respondent in accordance with these Orders.

Father's Day

1. That in the even that Father's Day falls on a day when, pursuant to these orders, G is scheduled to spend time with the Applicant then such time will be suspended and G shall spend time with the Respondent from 9am to 5pm.

Mother's day

1. That in the event that Mother's Day falls on a day when, pursuant to the orders, G is scheduled to spend time with the Respondent, then such time will be suspended and G shall spend time with the Applicant from 9am to 5pm.

Father's Birthday

1. That in the event that the Father's birthday falls on a day where G is scheduled, pursuant to these orders, to spend time with the Applicant then G shall spend time with the Respondent for four hours by agreement and failing agreement from 3:00pm to 7:00pm.

Mother's Birthday

1. That in the event that the Mothers birthday falls on a day where G is scheduled, pursuant to these orders, to spend time with the Respondent then G shall spend time with the Applicant for four hours by agreement and failing agreement from 3:00pm to 7:00pm.

Other

1. That each party shall immediately notify the other of any serious injury or illness or hospital admission of G whilst in the care of that party.

Restraints

1. That each of the parties be and are hereby restrained from denigrating the other or permitting any other person to denigrate the other in the presence of or in the hearing of the children.

2. That the parties are hereby restrained from showing any documents relating to these proceedings and discussing any aspect of the family law proceedings with or within the hearing of the children or with any other people other than as required in the family court proceedings.

3. That both parties be and are hereby restrained from entering upon the others property.

4. That both parties be and are hereby restrained from consuming illicit drugs 24 hours prior to and during periods of time the children are spending time/ living with them.

5. That each party be restrained from sending the other more than 4 electronic communications a day (including but not limited to email or SMS) and such messages to be limited to issues concerning parenting matters.  All such messages are to be courteous and non-denigrating.

6. That the mother be restrained from communicating with the paternal grandmother except as to issues concerning the arrangement of contact with the children and such communication is to be courteous and non-denigrating.

7. That each party be retained from varying the parenting orders, other than as provided herein, and it is noted that the parties require strict compliance with the orders.

Family Counselling

1. That on a without admissions basis the parties shall within 7 days of the date of the consent orders do all acts and things as may necessary so to appoint Mr GG for the purposes of providing family therapy to the parties.

2. That following the parties consultation as referred to in the preceding order, both G and L shall thereafter, if required by Mr GG, attend upon Mr GG for the purpose of family therapy.

3. That in order to facilitate the family therapy each party should do all things as reasonably necessary including but not limited to:

   a.Causing a joint letter of instruction to be provided to Mr GG, enclosing a copy of the consent orders and Dr P report.

   b.Attending such appointments made with or requested by the family therapist to a limit of not more than one appointment each fortnight.

   c.That for the purpose of the preceding orders the parties shall engage in not more than 10 appointments in a 6 month period from the date of the first appointment.

   d.If the child/ children are in his/ her care then ensuring the child/children's attendance at such appointments with or requested by the family therapist.

4. That so far as possible the parties shall as to the costs of and incidental to the family therapy, rely upon Medicare mental Health Plan referral to cover the expense of family therapy and otherwise each party shall meet one half of the costs of the family therapist each.

5. That on a without admissions basis both parties attend an anger management course within three calendar of the date of signing consent orders.

6. That on a without admissions basis both parties attend and participate in a parenting after separation course within 3 calendar months of the date of signing the consent orders.

The Court notes the following:

1. The respondent is strongly opposed to the imposition of a relocation order at any time, but has indicated preparedness to discuss with the wife terms on which he would consent to this from the beginning of 2019.

2. The respondent intends to continue regular counselling with Ms PQ (clinical psychologist) pursuant to his medicare mental health plan reviewed and updated by Dr QR 11 April 2017.

Husband Minutes of Property Orders Sought - 28 April 2017

THE COURT NOTES THE FOLLOWING:

1.1“Assessments” means the assessments issued by the Australian Taxation Office ("ATO") for the financial years ended 30 June 2014 and 30 June 2015 and the assessments issued by the New Zealand Taxation Office for the financial years ended 30 June 2014 and 30 June 2015.

1.2“ATO” means the Australian Taxation Office.

1.3“CGT” means Capital Gains Tax.

1.4“Personal CGT Liability” means the amount of CGT payable pursuant to the assessments.

1.5“B Capital” means B Capital Holdings Pty Ltd ACN ….  The Husband and the Wife are both directors and each hold one share in B Capital.

1.6“B Superannuation” means B Superannuation Holdings Pty Ltd ACN ….

1.7“Gadde Family Trust” means the Family Trust established pursuant to Deed dated 4 February 2011 of which Mr RS is the appointer and the trustee is B Capital.

1.8“Husband's Artworks” means paintings named by the following artists Mr ST, Mr TU, Mr UV

1.9“Husband's Bank Accounts” means all accounts including credit and debit accounts in financial institutions held by the Husband in his sole name or jointly with another.

1.10“Husband's Furniture Effects” means the items of furniture, effects and contents at the Husband's rental property in Suburb K including the Husband's personal effects.

1.11“Husband” means Mr Gadde born on … 1972.

1.12“Husband's Car” means the … motor vehicle registration …

1.13“Husband's Superannuation” means the Husband's member entitlements in the Gadde Family Superannuation Fund and the AMP Super Fund.

1.14“O Town Property” means the property at VW Street, O Town

1.15“NAB Joint Account” means the National Australia Bank Account number …46 in the joint names of the Husband and the Wife.

1.16“The New Zealand Property” means the property situated at WX Street, R Town, New Zealand.

1.17“Parties” means the Husband and the Wife.

1.18“Wife's Artworks” means the paintings named:

1.18.1…

1.18.2All other artwork in the Wife's possession save for the Mr ST Artwork

1.19“Wife's Bank Accounts” means all accounts including credit and debit accounts in the financial institutions held by the Wife in her sole name or jointly with another.

1.20“Wife's Furniture Effects” means items of furniture, effects and contents at the Wife's rental property in Suburb I including the children’s effects.

1.21“Wife's Car” means a German  motor vehicle registration number ...

1.22“Wife” means Ms Gadde born on … 1974.

1.23“Wife's Superannuation” means the Wife's member entitlement in the Gadde Family Superannuation Fund.

THE COURT ORDERS:

1. That within 14 days the parties do all things necessary and sign all documents necessary to list the O Town Property with XY Real Estate for sale by auction.

2. On settlement of the sale of the O Town Property the proceeds of sale to be distributed in the following priority:

   a.To pay all costs and expenses of the sale of the O Town property including legal costs and disbursements, agents commission, valuer's fees, advertising and sale expenses

   b.The pay all amounts necessary to discharge all outstanding rates, electricity of other service accounts in respect of any service provided to the O Town property outstanding at the date of sale

   c.The loan from Ms W in February 2014

   d.The loan from Mr X in July 2014

   e.The husbands FY14 income tax liability including penalties and interest charged by the ATO on that amount to date.

   The liability owed to the husband by The Gadde Family Trust as set out in the financial statements for FY16.

   f.The balance thereafter to distributed equally between the husband and the wife

3. The husband to otherwise retain all remaining assets of the Gadde Family including:

   a.The monies in trust with YZ Lawyers in New Zealand

   b.The Gadde Family Trust share portfolio with ZA Partners

   c.The residual cash balance at C Partners

4. That simultaneous with compliance with orders 1, 2, 3 and 4 hereof the Wife shall do all acts and things as may be necessary to:

   a.Assign to the husband all of her right title and interest in and to any sums due to her by the Gadde Family Trust;

   b.Forego any right or claims she may have with respect to the Gadde Family Trust whether as a potential beneficiary or otherwise;

   c.Remove the wife as a beneficiary;

   d.Effect an assignment to the wife of any assignment to the wife of any debt owed by the husband to the Gadde Family Trust

   e.Resign as an appointor of the Gadde Family Trust and do all acts and things as may be necessary to appoint the Husband as the appointor of the Gadde Family Trust.

5. That simultaneous with order 2 and 3 herein the parties do all things necessary and sign all documents necessary to transfer from the Wife to the Husband all of her right title and interest in the B Superannuation Fund and B Capital.

6. That simultaneous with order 4 hereof the wife do all acts and things necessary and sign all documents necessary to:

   a.Resign from all officer held by her in the B Superannuation Fund and B Capital;

   b.Transfer to the husband all of her right title and interest in the her shareholding in B Superannuation Fund and B Capital;

   c.Give effect to the assignment to the husband of all of her right title and interest in and to any sums due to her from B Superannuation Fund and B Capital.

   d.That simultaneous with the Wife's compliance with order 4 and 5 hereof, the husband shall indemnify the wife and keep her indemnified against all liabilities arising out of or in connection with the Wife having previously been a director, secretary or shareholder of B Superannuation Fund and B Capital; and

   e.All claims, actions, suits or demand whatsoever arising out of in connection with B Superannuation Fund and B Capital.

7. That within 14 days of the date of these orders the parties shall do all acts and things and sign all documents necessary to cause the funds held in the following joint account at National Australia Bank account number …46 to be divided equally between the parties as may be directed by each of the parties in writing and thereafter do all things and sign all documents necessary to cause that bank accounts to be closed:

8. That the husband shall retain to the exclusion of the Wife all of his right title and interest in the following:

   a.The Gadde Family Trust;

   b.All bank accounts held either solely or jointly with another person (other than the Wife);

   c.Artwork in his possession and the artwork pieces currently in the wife's possession;

   d.Household effects and contents in his possession;

   e.Motor vehicle [insert registration];

   f.The EEPL Trading account;

   g.His interest in the Gadde Superfund

   h.His AMP Superannuation Fund

   i.The Gadde Family Trust

9. That the Wife shall retain to the exclusion of the husband all of her right title and interest in following:

   a.All bank accounts in her sole name;

   b.Artworks in her possession with the exception of the Mr ST

   c.Furniture and household contents in her possession;

   d.Jewellery;

   e.German Motor vehicle;

   f.Her MLC Superannuation Fund

   g.Interest in the Z Trust;

   h.Interest in the AA Trust;

   i.Interest in the V Trust.

10. That the Husband shall indemnify the Wife and keep her indemnified with respect of any liability, debt or claim that exists in his separate name or any liability that may arise in relation to any of the items of property that vest with him in accordance with these orders.

11. That the Wife shall indemnify the Husband and keep him indemnified with respect of any liability, debt or claim that exists in her separate name or any liability that may arise in relation to any of the items of property that vest with her in accordance with these orders.

12. That as between the Husband and Wife, and subject to the above Orders, the Husband and Wife shall each respectively retain all interest in and entitlement to:

    a.All personal property now in his/her respective possession or control.

    b.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.

    c.All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.

13. That an independent expert be appointed to assess damages payable by the wife for losses incurred by the Husband, Ms W and Mr OO on the EEPL share portfolio pursuant to the Undertaking as to Damages sworn by the wife on 28 July 2016

14. That in the event that either party fails to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Family Court of Australia at Sydney be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such failure by way of affidavit.

15. The wife pay the husband’s legal costs incidental to this application.