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 Gollings and Scott (2007) FLC 93-319 Grier & Malphas (2016) 55 Fam LR 107 |
| 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
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…
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- AGLC
- Gadde and Gadde & Anor [2018] FamCA 404
- Case
- [2018] FamCA 404
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of the asset pool available for division, specifically whether certain assets held within discretionary trusts should be notionally added back, and whether the evidence supported a beneficiary's reasonable expectation of financial support from these trusts. Further, the court had to assess the nature and benefit of the husband's relationship with the children, considering factors such as overnight time, involvement in daily life, and the impact of drug use. The court also had to consider an application for the relocation of a child to New Zealand and make appropriate orders regarding the children's time with each parent, including arrangements for step-parental relationships.
In relation to property, the court made orders for the transfer of various assets and interests between the parties, including shares in a company, interests in a family trust, and specific artworks. The court also made orders regarding the division of superannuation entitlements and the allocation of debts and liabilities. In the parenting proceedings, the court made orders for the wife to have sole parental responsibility for one child, L, and permitted L's relocation to New Zealand. For the other child, G, the court discharged previous orders and made no specific orders, noting that G would spend time with the husband in accordance with her wishes. Detailed arrangements for the husband's time with L were set out, both pending relocation and after relocation to New Zealand, with specific provisions for school terms, holidays, and parental birthdays.
Orders
Orders of the court
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:
1.1 transfer 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”);
1.2 transfer and assign to the Wife all of his right, title and interest in any credit loan account, if any, in the Gadde Family Trust;
1.3 resign from each and every office that he holds with the Company;
1.4 sign 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
1.5 sign 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:
2.1 take all necessary steps and execute all documents to:
2.1.1 cause 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
2.1.2 take 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:
3.1 cause 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
6.
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:
6.1 The 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");
6.2 Immediately 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:
6.2.1 to note receipt of the request by the Husband to transfer the Husband's benefit to another complying superannuation fund;
6.2.2 to note receipt of the election by the Wife to hold the remaining benefits in the Gadde Superannuation Fund in her sole name; and
6.2.3 to authorise the transfer to the Trustees of the Husband's new complying superannuation fund of his member benefit in the Gadde Superannuation Fund.
7.
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:
7.1 resign his membership from the Gadde Superannuation Fund;
7.2 resign as a director of the Gadde Superannuation Fund;
7.3 vote 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
7.4 transfer to the Wife his shareholding in the Gadde Superannuation Fund.
8.
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:
8.1 The Gadde Family Trust;
8.2 The Wife's bank accounts;
8.3 The Wife's shares;
8.4 The Wife's motor vehicle;
8.5 The Wife's superannuation; and
8.6 All 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.
9.
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:
9.1 The Husband's bank accounts;
9.2 The Husband's motor vehicle;
9.3 The Husband's superannuation;
9.4 All other property or financial resources of whatsoever nature and kind in the possession of the Husband at the date of these orders.
10.
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:
10.1 Any credit card liabilities held by the Husband, either in his sole name or jointly with a third party (other than the Wife);
10.2 Any amount due and payable to American Express;
10.3 Any liabilities of the Husband to the Australian Taxation Office.
10.4 The loan from Mr X; and
10.5 The loans from Ms Y.
11.
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:
11.1 Any credit card liabilities held by the Wife, either in her sole name or jointly with a third party (other than the Husband);
11.2 Any liabilities of the Wife to the Australian Taxation Office.
12.
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.
13.
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.
14.
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
15.
That the Wife has sole parental responsibility for L, born … 2009.
16.
L is to live with the Wife.
Relocation
17.
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
18.
In relation to G, born … 2004:
18.1 All previous orders are discharged;
18.2 No orders are made in respect of G;
18.3 The 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
19.
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
20.
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.
21.
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.
22.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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