Hadden & Hadden
[2011] FMCAfam 380
•5 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADDEN & HADDEN | [2011] FMCAfam 380 |
| FAMILY LAW – Parenting orders – limited issues – property proceedings – credit issues – assessment of contribution and future needs. |
| Family Law Act 1975 |
| Black & Kellner (1992) FLC 92-287 Giunti & Giunti (1986) FLC 91-759 Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39 MH & MZ (2005) FLC 93-226 Kowaliw and Kowaliw (1981) FLC 91-092 Mezzacappa & Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853 Money v Money (1994) FLC 92-485 Norbis v Norbis (1986) 161 CLR 513 Pierce v Pierce (1998) FLC 92-844 Weir (1993) FLC 92-338 Williams & Williams [2007] FamCA 313 |
| Applicant: | MR HADDEN |
| Respondent: | MS HADDEN |
| File Number: | SYC 6445 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 1, 2 & 3 March 2011 |
| Date of Last Submission: | 3 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt |
| Solicitors for the Applicant: | Streeter Law |
| Counsel for the Respondent: | Ms Reynolds |
| Solicitors for the Respondent: | Morgan Ardino & Co |
ORDERS
PARENTING
That [X] born [in] 2004 (“[X]”) live with the mother other than when she is to spend time with the father as set out hereunder.
That [X] spend time with the father as follows:
(a)During the school term from Saturday 9am until Sunday 6pm every alternate week commencing the Saturday following the date of these orders.
(b)Father’s Day of each and every year from 9 am until 6 pm, albeit at a time when [X] would be living with their mother.
(c)During school holidays for no less than 5 days to be agreed between the parties and the father be permitted to travel outside of the Sydney metropolitan area on these occasions.
(d)On Christmas Day from 9am until 9am Boxing Day in 2011 and each odd numbered year thereafter, unless otherwise agreed between the parties.
(e)On Boxing Day from 9am until 9am the following day in 2012 and each even numbered year thereafter unless otherwise agreed between the parties.
Further order that:
(a)The party with whom [X] is living with at that time is to be responsible for the day to day decisions concerning her care, welfare and development.
(b)The parties are to have equal shared parental responsibility for [X], including but not limited to:
(i) The school or schools that she is to attend.
(ii) The religious instruction and upbringing of [X].
(iii) The medical treatment that she is to receive.
(iv) The sporting and other activities that [X] is to engage in that would occur when [X] is to spend time with the father.
That order 2(a) is suspended:
(a)During such times as [X] is living with the mother during the school holidays.
(b)From 9 am until 6 pm on Mother’s Day of each and every year, albeit a weekend when [X] would be spending time with the father.
That the father collect [X] from the mother’s residence at the commencement of the time when [X] is to live with him and that the father return [X] to the mother’s residence at the conclusion of her spending time with the father.
That the mother provide the father with the following:
(a)The names and addresses of [X]’s treating doctors and dentists.
(b)The dates of parent/teacher functions, sports carnivals and details of [X]’s extra-curricular activities.
That each party immediately notify the other if [X] is seriously ill or is to be admitted into hospital at such times as [X] is living with that party.
That at such times as either party takes [X] on holidays outside the Sydney area that that party provide the other party with the address and telephone number of where [X] will be staying.
That each party cause the [X] to telephone the other party at least twice per week when the children are on holidays with that party.
That the mother shall ensure the father is advised of any specialist appointments or medical appointments involving [X] so as to enable the father’s attendance and also so as to enable the father to obtain information from the treating specialist/doctor.
That each party shall notify the other of any medical treatment or allied health care received by [X] whilst living with either parent.
That each party shall notify the other of any change of their residential address or mobile telephone number and such notice is to be given within 24 hours.
That neither party is to denigrate the other or allow any other person in that party’s household to do so in the hearing or presence of [X] nor allow any other third party to do so.
That the Father shall communicate with the child via the telephone at reasonable times with reasonable frequency.
That both parties be permitted to travel overseas with [X] provided that:
(a)The party wishing to travel with [X] provides no less than 2 months written notice to the other parent including a copy of the itinerary and return airline flight details.
(b)That the party wishing to travel with [X] provides to the other parent no less than 2 months prior to the intended travel date a certificate of travel insurance which must included health insurance and repatriation.
(c)That the party travelling with [X] shall initiate a telephone call not less than 2 times per week between [X] and the other parent.
PROPERTY
That the wife sign all documents and take all steps to cause the mortgage secured over the properties at 1 Property A, 2 Property A and 3 Property A to be discharged within 90 days of these orders.
That the wife pay to the husband the sum of $255,659.00 within
90 days of these Orders.That the husband be declared the owner at law and in equity the properties known as at 1 Property A, 2 Property A, and 3 Property A.
Contemporaneously with order 1 hereof and upon payment by the wife to the husband of the amount in order 2 hereof, the husband shall sign all documents and do all things to transfer to the wife all his right, title and interest in [G] Pty Ltd.
That the husband be declared the owner and the wife to have no claim upon:
(a)All other property registered in his name;
(b)All motor vehicles and items of personal possession presently held by him.
That the wife be declared the owner and the husband to have no claim upon:
(a)All other property registered in her name;
(b)All motor vehicles and items of personal possession presently held by her.
In the event that the wife fails to pay to the husband the sum specified in order 2 herein within 90 days then the husband and the wife in their capacity as directors of the Trustee of the [G] Family Trust shall do all acts and things and sign all documents necessary to cause the sale of the property known as [address omitted] Darwin NT (having Folio Identifier Lot [omitted]) (“Darwin property”) and the proceeds of sale to be disbursed as follows:
(a)In payment of any agents fees and conveyancing fees in respect to the sale.
(b)In payment of a mortgage secured against the property.
(c)In payment to the husband the sum of $255,659.00 plus interest calculated pursuant to the Family Law Rules.
(d)The balance to the [G] Family Trust.
In the event of the subject property by private treaty has not been effected within a period of three (3) months of listing of the property in accordance with order 7 herein, then the parties shall make all such arrangements and do all such acts and sign all such documents and cause the [G] Family Trust to pay all monies necessary to procure a sale by public auction of the Darwin property upon the following terms:
(a)The auctioneer shall be as agreed between the parties;
(b)The auction shall take place within a period of one (1) month after the deadline date for sale by private treaty;
(c)The reserve price shall unless agreed upon by the parties be as proposed by the auctioneer;
(d)The applicant wife and respondent husband shall cause the [G] Family Trust to pay expenses payable before the real property is auctioned.
(e)That the balance of sale proceeds obtained thereafter be disbursed in accordance with Orders 7(a) to (d) above.
That there be liberty to relist the matter before Federal Magistrate Altobelli on 7 days notice as regards the interpretation, implementation and enforcement of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Hadden & Hadden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6445 of 2008
| MR HADDEN |
Applicant
And
| MS HADDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings between the applicant husband, and the respondent wife, relate to a dispute between them about parenting orders, and about property settlement. As it turns out the issues relating to parenting matters were very limited and will be dealt with quite briefly in the reasons below. The major controversy therefore related to a property settlement. The applicant husband is 65 years old and the respondent wife 46 years old. They commenced cohabitation in January 1998 and separated on a final basis in January 2007, after a period of cohabitation and marriage of nine years. They have one daughter, [X], who is six years old.
Background
As indicated above, by the time of closing submissions the issues in relation to the parenting orders for [X] had become so narrow, that I propose to deal with them briefly, and discretely, in my reasons below. In this section, therefore, the focus will be on providing background to the property proceedings.
Both parties migrated to Australia. In the husband’s case he migrated in 1967 from England, and the mother migrated in 1993 from China.
In January 1998 when the husband and wife commenced cohabitation, the wife was living with her two year old son [Y], and her mother, in their home unit at Property H. The wife’s previous marriage to [Y]’s father had broken down. She was working in [omitted].
At the time of cohabitation the husband was a widower and was working in his [omitted] business.
Both the husband and wife had various assets and liabilities at the time of cohabitation, and one of the issues in this case is to assess contribution as at the date of cohabitation.
During the period of cohabitation both the husband and the wife were very industrious, astute investors. They purchased real estate either in their names, or through corporate entities operating as trustees for various trusts. The husband sold his interest in his [business]. The wife established a [omitted] business. The precise details of all of these transactions, sometimes viewed from the differing perspectives of the husband and the wife, are all set out in detail in their affidavits. For the purposes of these reasons, however, there is no need to go into detail. One of the issues in this case is to assess contribution as at the date of separation, and that is a task that I am satisfied I can undertake on the evidence without setting out a detailed history of these transactions.
At various times during the cohabitation both parties were studying. The husband was eventually rewarded with a [qualification omitted], and the wife obtained a [qualification omitted] and was admitted to the [organisation omitted].
When the parties separated the wife continued to manage the [G] Family Trust which, by then, was the corporate ownership vehicle for a suite of the properties acquired by the parties.
There were a number of transactions in the post-separation period that are, again, not necessary to recite in these reasons. One of the issues for my determination, however, is to assess contribution as at the date of the trial, with the wife asserting that she made a post-separation contribution. In circumstances where the parties separated over four years ago, it is not inappropriate to look at contribution in the post-separation period.
There is an issue between the parties about assessment of considerations under section 75(2), with the wife asserting that there should be a 10 per cent adjustment in her favour, and the husband asserting that all relevant section 75(2) considerations offset each other.
There are a number of very discrete balance-sheet issues which will need to be dealt with before considering contribution.
The husband’s proposal involves him retaining three of the investment properties in [A], a payment to him by the wife of $300,000, and his retaining his other assets other than his interest in the [G] Family Trust which he proposes to assign to the wife. His counsel, Ms Druitt, submits that the effect of the order sought by the husband would be that he receive as little as 58 per cent of the pool of assets that he asserts, even though his entitlement would be much greater. Indeed, Ms Druitt’s submission was that on a strict contribution-based assessment, the husband’s overall entitlement should be about 66 per cent.
The wife’s proposal was that she receive an overall settlement in her favour of 65 per cent. She submits, through her counsel Ms Reynolds, that contribution should be assessed in her favour at 55 per cent, and there should in addition be an adjustment of 10 per cent for section 75(2) considerations.
Whilst the husband’s proposal is very specific in terms of what property he seeks to retain, the wife’s proposal was expressed in global and percentage terms.
Both the husband and the wife were quite extensively cross-examined. Issues of credit are raised, and need to be the subject of findings.
Having regard to the broad introduction set out above the issues in this case appear to be as follows:-
a)Parenting orders, though the issues are quite discrete
b)Credit issues
c)The constitution of the balance sheet
d)Assessing contribution at cohabitation
e)Assessing contribution at the date of separation
f)Assessing contribution at the date of trial
g)Assessing section 75(2) considerations
h)Considering what is a just and equitable order.
Applicable Law
The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is, the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole. My discretion in this regard should be exercised having regard to the facts of this case.
Another issue in this case is how, precisely, I should weigh and assess the initial contribution made by the husband and the wife in bringing property into the marriage. In this regard, I need to consider the decision of the Full Court in Pierce v Pierce (1998) FLC 92-844. A useful recent decision of the Full Court examines its earlier decision in Pierce v Pierce together with a later case. In Williams & Williams [2007] FamCA 313 the Full Court states as follows at paragraphs 26, 27, 28, 29 and 32:
26. We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
29. Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.
32. In MH & MZ (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the husband and 25 per cent in favour of the wife. The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.
Accordingly, I must not only identify the contributions of each party, but also assess the weight to be attributed to these contributions having regard to many factors including what has occurred afterwards.
A significant issue in this matter was the alleged non-disclosure of the wife. Attempting to deal with non-disclosure often puts the other spouse to considerable difficulty with regards to investigating their financial affairs. The Full Court in Weir (1993) FLC 92-338 at 79,593–4 made the following statement regarding the duty to disclose and the Court’s powers where non-disclosure has been found:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black & Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti & Giunti (1986) FLC 91-759, and Mezzacappa & Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature…
We appreciate that this is something of a broad brush approach, but, as we have said, where there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party. It has been said by one commentator (O'Ryan and Broadfoot, 5th National Family Law Conference Handbook, p 249) the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contribution, or to properly assess s 75(2) factors.
The husband raised what is, in effect, a waste argument. A succinct statement of the law in this regard is the statement by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 at 76 644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Parenting Orders
By the time of the close of evidence the mother’s objections to the father’s proposed minute of order were really quite limited. I propose to reproduce the father’s proposed minute of order, and then identify and discuss where the points of contention arise.
The father’s proposed minute of order is as follows:-
(1) That [X] born [in] 2004 (“[X]”) live with the mother other than when she is to spend time with the father as set out hereunder.
(2) That [X] spend time with the father as follows:
(a) During the school term from Saturday 9am until Sunday 6pm every alternate week commencing the Saturday following the date of these orders.
(b) Father’s Day of each and every year from 9 am until 6 pm, albeit at a time when [X] would be living with their mother.
(c) During school holidays for no less than 5 days to be agreed between the parties and the father be permitted to travel outside of the Sydney metropolitan area on these occassions.
(d) On Christmas Day from 9am until 9am Boxing Day in 2011 and each odd numbered year thereafter, unless otherwise agreed between the parties.
(e) On Boxing Day from 9am until 9am the following day in 2012 and each even numbered year thereafter unless otherwise agreed between the parties.
(3) Further order that:
(a) The party with whom [X] is living with at that time is to be responsible for the day to day decisions concerning her care, welfare and development.
(b) The parties are to have equal shared parental responsibility for [X], including but not limited to:
(i) The school or schools that she is to attend.
(ii) The religious instruction and upbringing of [X].
(iii)The medical treatment that she is to receive.
(iv)The sporting and other activities that [X] is to engage in that would occur when [X] is to spend time with the father.
(4) That order 2(a) is suspended:
(a) During such times as [X] is living with the mother during the school holidays.
(b) From 9 am until 6 pm on Mother’s Day of each and every year, albeit a weekend when [X] would be spending time with the father.
(5) That the father collect [X] from the mother’s residence at the commencement of the time when [X] is to live with him and that the father return [X] to the mother’s residence at the conclusion of her spending time with the father.
(6) That the mother provide the father with the following:
(a) The names and addresses of the [X]’s treating doctors and dentists.
(b) The dates of parent/teacher functions, sports carnivals and details of [X]’s extra-curricular activities.
(7) That each party immediately notify the other if [X] is seriously ill or is to be admitted into hospital at such times as [X] is living with that party.
(8) That at such times as either party takes [X] on holidays outside the Sydney area that that party provide the other party with the address and telephone number of where [X] will be staying.
(9) That each party cause the [X] to telephone the other party at least twice per week when the children are on holidays with that party.
(10) That the mother shall ensure the father is advised of any specialist appointments or medical appointments involving [X] so as to enable the father’s attendance and also so as to enable the father to obtain information from the treating specialist/doctor.
(11) That each party shall notify the other of any medical treatment or allied health care received by [X] whilst living with either parent.
(12) That each party shall notify the other of any change of their residential address or mobile telephone number and such notice is to be given within 24 hours.
(13) That neither party is to denigrate the other or allow any other person in that party’s household to do so in the hearing or presence of [X] nor allow any other third party to do so.
(14) That the Father shall communicate with the child via the telephone at reasonable times with reasonable frequency.
(15) That both parties be permitted to travel overseas with [X] provided that:
(a) The party wishing to travel with [X] provides no less than 2 months written notice to the other parent including a copy of the itinerary and return airline flight details.
(b) That the party wishing to travel with [X] provides to the other parent no less than 2 months prior to the intended travel date a certificate of travel insurance which must included health insurance and repatriation.
(c) That the parties ensure that in the event that [X] is not staying in the residence of family overseas then her accommodation in hotels is of no less than 3 stars accreditation.
(d) That in the event that [X] travels to China with the Mother then she is to be accompanied by the maternal grandmother.
(e) That the party travelling with [X] shall initiate a telephone call not less than 2 times per week between [X] and the other parent.
The mother prefers that [X] be returned to her care, after spending time with her father, at 5 pm on Sundays, and as otherwise specified in proposed order 2(a) and 2(b). The father proposes 6 pm. It was hard to discern from the evidence what, precisely, was the basis of the mother’s concern. The evidence indicates that both parents live geographically proximate to each other. Thus, travelling time is not an issue. [X] is six years old, soon to be seven years old. The periods of time that she spends with her father are, on balance and when compared to many other children her age, quite modest. In these circumstances it is difficult to understand the mother’s concern. I will make the orders as proposed by the father, with [X] to be returned at
6 pm on Sunday evenings. It is not that late that it will disrupt her evening routine, as I have understood it from the evidence, and her preparation for school on the following day. I do note, and acknowledge, that the mother has come around to the idea of overnight contact each alternate Saturday night. I formed the impression that the mother was somewhat anxious, and possibly over protective about [X] spending time with her father, but there did not appear to be any objective basis for this. Nonetheless, and to the mother’s credit, she did accept that overnight time was now appropriate.
The mother expressed concern about orders 2(d) and (e), simply because they prescribe for [X] to have contact with her father on Christmas Day this year, and thereafter during each odd-numbered year. Her concern seems to be based on a desire to travel with [X] to China over the Christmas period, a matter that will be discussed below. I prefer to treat this as a separate issue, rather than one going to where [X] should be on Christmas Day, and/or Boxing Day, in 2011. I thus intend to make orders as proposed by the husband in this regard.
Order 9 was the subject of concern by the mother in that she was not sure that it would be possible to have [X] ring her father at least twice per week when on holidays, particularly if they were travelling to some of the remoter parts of China. On hearing the evidence, however, I’m not satisfied that there is any reasonable basis for this concern. I will adopt the order as proposed by the husband.
Finally, the mother expresses concerns about paragraphs (c) and (d) of order 15. Of course order 15 enables both parents to travel overseas with [X] on certain conditions. This certainly meets the mother’s need and desire to travel with [X] to China to visit family. The evidence indicates that the reason for paragraph (c) is to address a concern by the father that if there is no minimum standard of accommodation prescribed in the orders, that the mother will adopt the cheapest option, irrespective of its quality. Whilst I accept from the evidence that the mother is certainly careful as to how she spends her money (except perhaps as regards legal fees, but that is another issue) I am not satisfied that she would take [X] to stay in accommodation that is inappropriate. In any event, I think the proposed paragraph (c) is problematic in that the accreditation standards for hotels in China may well be entirely different to those in other parts of the world, including Australia.
In relation to paragraph (d) of order 15 the evidence indicates that the father proposed the insertion of this requirement because of the very strong attachment that he perceives exists between [X] and her grandmother. The evidence clearly indicates that the maternal grandmother is probably the person who has been more involved in [X]’s life than even her mother and father. That does not, however, mean that she becomes [X]’s primary attachment figure, or that [X] could not cope with an absence from her grandmother. I do not see the need for this requirement. I believe it would, in any event, be quite oppressive for both the mother and the maternal grandmother.
Subject to the matters to which I have made reference, the orders seem to be child focused, and appropriate. The impression I have formed from the evidence is that [X] is a delightful little girl who has thrived in the care of her mother and grandmother and father whilst he was there, and will be given every opportunity available to her for education. She will be well cared for both in the mother and father’s household. I have no reservation, therefore, in making the orders proposed, subject to the matters I have mentioned above.
Credit Issues
Regrettably this is a case where it is necessary to make findings about credit, particularly in relation to the issues of assessment of contribution and financial disclosure. Specifically, the husband’s counsel submitted that the wife told significant lies in the proceedings. In any event, the wife’s case seemed to be one that she made special contributions in all but name, and it certainly raises the issue of whether she was exaggerating her evidence in this regard.
The father was robustly cross-examined by counsel for the wife,
Ms Reynolds. He was, for the most part, courteous, cooperative and responsive to questions. He was, at times, seeking to present certain evidence in its best possible light, for example, the value that he attributed to his business, [S] Pty Limited was probably a gross, rather than a net value. He probably also overstated the extent of his expenses relating to [X]. However, viewed in the light of the husband’s evidence overall in these proceedings I do not regard these matters as going to the husband’s credit.
By contrast, I have serious reservations about the wife’s evidence in relation to financial matters and contribution generally. I found her to be sometimes unresponsive in cross-examination about financial evidence. Her own evidence indicates that she was far more preoccupied with the preparation of her own evidence, than to provide disclosure to the husband and his solicitors. For a woman who claimed to be a highly successful [occupation and qualifications omitted], I found her statements that she did not know what a ledger and journal was, to be astonishing. She adopted a cavalier attitude in cross-examination about production of documents pursuant to notice to produce. Her disclosure about the [G] Family Trust assets in her financial statement was found wanting in cross-examination. Her professed lack of knowledge about the benefits of tax losses held by the trust was unconvincing.
The wife’s evidence about the loan application that she submitted to ING was plainly based on information that she provided to her mortgage broker, and was plainly false. The loan application was based on a statement of earnings that was also false. The wife asserted that her mortgage broker had produced a forged statement of earnings. I do not accept this. The wife was the [occupation omitted] for the company on whose letterhead it was falsely asserted that she was an employee earning $85,000 as an annual salary, rather than a contract [occupation omitted]. It is more likely than not that the wife produced this document. She had both the opportunity and the motive. Even the wife admitted in cross-examination that she was desperate to get the loan in question.
Even putting this aside, the wife was often unresponsive when confronted with evidence in cross-examination that demonstrated that she was plainly overstating her contribution, and minimising that of the husband.
Overall I find that the wife’s disclosure was selective, her evidence about financial matters is unreliable where not corroborated by documents that she had not prepared herself, and that she has deliberately sought to exaggerate evidence about her contribution whilst minimising that of the husband. For all of the above reasons, and unless independent documents establish to the contrary, I prefer the evidence of the husband, on these issues.
Balance Sheet
By closing submissions I was presented with an agreed balance sheet which identifies the contentious issues. That balance sheet is reproduced below:-
| Assets | Husband | Wife | ||
| 1 | 1 Property A | H | $ 445,000.00 | $ 455,000.00 |
| 2 | 2 Property A | H | $ 455,000.00 | $ 455,000.00 |
| 3 | 3 Property A | H | $ 455,000.00 | $ 445,000.00 |
| 4 | Property H | W | $ 520,000.00 | $ 520,000.00 |
| 5 | Property K | W | $ 275,000.00 | $ 275,000.00 |
| 6 | Property E | W | $ 400,000.00 | $ 400,000.00 |
| 7 | Property C, QLD | GFT | $ 415,000.00 | $ 415,000.00 |
| 8 | Property B, QLD | GFT | $ 415,000.00 | $ 415,000.00 |
| 9 | Property S | GFT | $ 465,000.00 | $ 465,000.00 |
| 9A | Property D | GFT | $- | $- |
| 10 | Investments see foot | GFT | $ 400,587.76 | $ 400,587.76 |
| 11 | 1998 BMW 323i | H | $ 6,000.00 | $ 6,000.00 |
| 12 | Furniture and Personal effects | H | $ 10,000.00 | $ 10,000.00 |
| 13 | New Property A Account (rent receipts) | h | $ 1,393.68 | $ 1,393.68 |
| 14 | Shares see foot | W | $ 15,866.12 | $ 15,866.12 |
| 15 | Deeming account | h | $ 33.34 | $ 33.34 |
| 16 | Wife's legal fees paid from [R] account | $ 20,000.00 | $ 20,000.00 | |
| 17 | Husband's legal fees paid from [R] account | $ 17,718.79 | $ 17,718.79 | |
| TOTAL GROSS ASSETS | $4,316,599.69 | $ 4,316,599.69 | ||
| Liabilities: | ||||
| 18 | Westpac Mortgages | $ 960,000.00 | $ 960,000.00 | |
| 19 | [R] Investment Loan | $ 550,000.00 | $ 550,000.00 | |
| 20 | Westpac Mortgage Property A | H | $ 38,000.00 | $ 38,000.00 |
| 21 | Capital Gains Tax | GFT | $ - | $ 70,000.00 |
| total Liabilities | $1,548,000.00 | $ 1,618,000.00 | ||
| Total net assets | $2,768,599.69 | $ 2,698,599.69 | ||
| Superannuation | ||||
| 22 | H | $ 3,076.99 | $ 3,076.99 | |
| 23 | Wife super [omitted] | W | $ 29,795.45 | $ 29,795.45 |
| Total Super | $ 32,872.44 | $ 32,872.44 | ||
| Total all assets net | $2,801,472.13 | $ 2,731,472.13 | ||
| 24 | Accumulated Tax Losses | GFT | $ 73,828.00 | $ - |
| Adjusted Total including Tax Benefits | $2,875,300.13 | $ 2,731,472.13 | ||
| Shares | ||||
| Company | No. shares | $ Price as at 1 March 2011 | Total current value | |
| AMP | 1040 | $ 5.35 | $ 5,564.00 | |
| IAG | 1108 | $ 3.65 | $ 4,044.20 | |
| TAB (TabCorp Holdings TAH) | 488 | $ 7.35 | $ 3,586.80 | |
| Telstra | 533 | $ 2.79 | $ 1,487.07 | |
| Wesfarmers LIM | 35 | $ 33.38 | $ 1,184.05 | |
| $ 15,866.12 | ?? | |||
A number of issues arise out of the balance sheet. At item 3, the husband asserts a higher value for his property than the wife does. I accept his evidence as it is against interest.
Item 21 is a capital gains tax liability that the wife submits ought to be included on the balance sheet. This is a liability payable by [G] Family Trust arising out of the sale of a Darwin investment property in 2009. The wife deposes that it was sold for $465,000, a profit on the purchase price. It seems common ground that there is likely to be a capital gains tax liability, though this is not assessed. The wife asserts it is $70,000. No expert evidence as to the quantification of this was adduced. I do not accept that the wife is an expert in this regard, and she certainly did not demonstrate that level of expertise in the witness box. In the absence of expert opinion, but noting that both parties agree that there will be a capital gains tax liability, I have no alternative but to treat this as a consideration under section 75(2). The matter proceeded on the basis that the wife would probably retain the [G] Family Trust assets, and thus become responsible for this liability. Accordingly, this is a s.75(2) consideration in her favour.
I note that Item 9A is blank in the schedule. I presume this is because on the wife’s evidence there is no equity in the property.
There is also an issue about accumulated tax losses at item 24. The husband asserts that this should be included in the balance sheet, as an asset of the wife, on the basis that these tax losses held by the [G] Family Trust will ultimately benefit her. The wife’s counsel conceded in closing submissions that there are tax losses in this amount, but that this was not property and thus should not be included in the balance sheet. I agree. It is by no means certain that these tax losses will ever be crystallised into some form of potential benefit for the trust. It is more properly characterised as a section 75(2) consideration that is of potential benefit to the wife.
Accordingly, the balance sheet should not refer to either items 21 or 24 as these are matters to be considered under section 75(2).
The final balance sheet will therefore be:-
| Assets | Husband | ||
| 1 | 1 Property A | H | $ 445,000.00 |
| 2 | 2 Property A | H | $ 455,000.00 |
| 3 | 3 Property A | H | $ 455,000.00 |
| 4 | Property H | W | $ 520,000.00 |
| 5 | Property K | W | $ 275,000.00 |
| 6 | Property E | W | $ 400,000.00 |
| 7 | Property C, QLD | GFT | $ 415,000.00 |
| 8 | Property B, QLD | GFT | $ 415,000.00 |
| 9 | Property S | GFT | $ 465,000.00 |
| 9A | Property D | GFT | $- Nil |
| 10 | Investments see foot | GFT | $ 400,587.76 |
| 11 | 1998 BMW 323i | H | $ 6,000.00 |
| 12 | Furniture and Personal effects | H | $ 10,000.00 |
| 13 | New Property A Account (rent receipts) | h | $ 1,393.68 |
| 14 | Shares see foot | W | $ 15,866.12 |
| 15 | Deeming account | h | $ 33.34 |
| 16 | Wife's legal fees paid from [R] account | $ 20,000.00 | |
| 17 | Husband's legal fees paid from [R] account | $ 17,718.79 | |
| TOTAL GROSS ASSETS | $4,316,599.69 | ||
| Liabilities: | |||
| 18 | Westpac Mortgages | $ 960,000.00 | |
| 19 | [R] Investment Loan | $ 550,000.00 | |
| 20 | Westpac Mortgage Property A | H | $ 38,000.00 |
| total Liabilities | $1,548,000.00 | ||
| Total net assets | $2,768,599.69 | ||
| Superannuation | |||
| 22 | H | $ 3,076.99 | |
| 23 | Wife super [omitted] | W | $ 29,795.45 |
| Total Super | $ 32,872.44 | ||
| Total all assets net | $2,801,472.13 |
Assessing contribution at the date of cohabitation
The husband submits that the court should find that he made a substantially greater contribution at the commencement of cohabitation which results in an adjustment of his favour of 16 per cent, even measured as at the time of the hearing.
The husband’s case for initial contribution is based on his having capital of $598,000 together with the value of the business [S]. In closing submissions, the wife’s counsel conceded that, on the evidence, a finding that the husband’s capital contribution was at least $600,000 was possible. The focus of the dispute about contribution is, in fact, the value of the business. The husband says that the value he attributes, $140,000, is based on its sale price. The wife says that its value was in fact negative. Overall the evidence indicates that the net worth to the husband and the wife of the husband’s business was probably minimal after taking into account money owed to creditors and the business overdraft, offset by the value of money owed by debtors, the value of plant and equipment, as well as some carried-forward tax losses. On this basis I do not propose to include the husband’s business as an asset that he held at cohabitation, but there is ample evidence to find that his initial contribution was about $600,000.
The wife’s case for initial contribution is based on her equity in her home unit at Property H. It was purchased for $187,000 in October 1996, 12 months prior to cohabitation, with a mortgage of about $97,000. The wife’s counsel submitted, and the husband’s counsel did not really cavil in submissions with the proposition, that the wife’s equity was about $100,000 at the time of cohabitation. I agree.
The wife’s counsel submitted that even the husband conceded in paragraph 28 of his affidavit that the wife had other personal assets at cohabitation the value of which was about $30,000. I do not take this to be an admission on his part as to the value of these assets. Even he asserted it was an estimated value. In cross-examination the wife conceded that she had no documents to support her assertion as to the value. Given the reservations I have about the wife’s credit generally, I am not prepared to place any value for assessment purposes on the other items that the wife asserts that she had at the time of cohabitation.
Thus, at cohabitation the wife had $100,000, the husband $600,000. He had 85 per cent of the assets at the time. The evidence indicates that these properties (i.e., the properties represented in the $100,000 and $600,000) were, in effect, the foundation of the parties’ current wealth. The wife’s Property H unit remains intact and is her home. The net pool of assets is about $2.8 million. The husband’s $600,000 represents about 20 per cent of that amount. This of course does not reflect the value to the parties of the husband’s $600,000 capital, and the extent to which has enabled them to build their wealth. Of course, this must be offset by the myriad contributions made by the parties during cohabitation, and even afterwards, and the value of the wife’s own contribution must not be under estimated. What is clear, however, is that the husband’s counsel’s submission of a 16 per cent adjustment is well within the range of a reasonable assessment of the husband’s greater financial contribution as at the date of cohabitation. Of course, what needs to be considered is the contribution that has occurred since then, particularly in view of the wife’s argument that she made a greater contribution than the husband between cohabitation and separation, and even afterwards.
Assessing contribution during cohabitation
The husband’s case, simply stated, is that contribution should be assessed as being equal as at the date of separation. Whilst the husband and the wife perform slightly different roles within the marriage, he asserts, ultimately the weight to be given to these contributions should be the same.
The wife’s case about her greater contribution during the marriage changed somewhat between the commencement of the hearing and its conclusion. In the wife’s counsel’s case outline, her case for contribution was that it should be assessed at 55 per cent even taking into account that the husband’s case for greater initial contribution. The basis of this is found in the outline of case document prepared by the wife’s counsel. In short, the wife’s case sought to minimise the husband’s contribution, emphasise the value of her own contributions, and assert that the husband had wasted assets. Regrettably for the wife, on all fronts her case failed. My impression of the wife is that she suffered from a regrettable delusion of grandeur about the value of her contributions as an investor, negotiator, administrator and book-keeper. Her evidence about this was plainly unconvincing when challenged in cross-examination. Given the issues I have about the wife’s credit on these issues, I decline to find that she made any greater contribution than the husband in the period to the date of separation.
By the time of final submissions, the submission in her favour for an assessment of greater contribution had become refined to focus on three arguments: that the value to the family of the services provided by the maternal grandmother was a contribution on the wife’s part;
that the wife made a unique contribution to the establishment of the book-keeping business; and that the wife’s management of the [G] Family Trust also reflected on her greater contribution.
There is little doubt on the evidence before me that the maternal grandmother’s role in homemaking and parenting was a significant one, freeing up the wife to focus on her other contributions of a financial nature. But to give this weight as a contribution attributable to the wife would be to ignore the husband’s contribution in joining with the wife in facilitating her mother’s migration to Australia, contributing to the bond required by the Commonwealth, and then meeting all of the grandmother’s costs and expenses of actually living in Australia. It is informative to note the wife’s own evidence at item 34 of her financial statement sworn 28 February 2011. She asserts that $600 per week is a personal expense that she pays for the benefit of her daughter [X], son [Y] and mother, and that this is funded from the joint [R] Investment loan account. My overall impression of the evidence is that this in fact reflects what happened during cohabitation as well, i.e., that the husband was contributing to the living expenses of the maternal grandmother, as well as the wife’s son [Y], and [X]. I cannot see in the evidence how this contribution made by the grandmother exceeds in value the contribution made by the husband in making the grandmother’s contribution possible.
The second submission sought to emphasise the contribution made by the wife to the establishment of the [omitted] business. It is, with respect, a thinly disguised special-contribution argument that is, in any event, not supported by any findings I make. The wife may well have “established” the [omitted] business (an item, it should be noted, that has no value on the balance sheet) and she may well have worked long hours in its establishment and operation, but to isolate this contribution of the wife, and elevate it somehow over and above the myriad other contributions made by the husband, is illogical, even if I were to accept her evidence. It is simply not just and equitable in the context of a relationship of this length, producing one child, and during which each of the husband and the wife worked hard in their respective roles, to make any quantitative or qualitative difference in assessment of contribution in this regard.
The third submission, again focuses on the wife’s contribution to the management of the [G] Family Trust. This submission suffers from the same problems as the one in the preceding paragraph. It seems to elevate in status what the wife has purportedly done, whilst ignoring the husband’s direct and indirect role.
I find that the wife contributed financially and non-financially, directly and indirectly, to the acquisition and improvement of the parties’ assets. She was also a diligent homemaker and parent, though as I will discuss, clearly the maternal grandmother played a greater role in this regard. I make the same findings in relation to the husband. There is nothing in the evidence before me to support a finding of any greater contribution by the wife over the husband during the period of cohabitation. In this period, I find contribution to be equal.
Contribution from the date of separation to the date of trial.
The wife asserts that there should be a further adjustment in her favour in respect of the four-year period between the date of separation and the date of trial, because she had the primary responsibility for the care of [X] who, it is submitted, had minimal contact with her father. Moreover, she asserts that he paid minimal child support. Whilst this submission is superficially attractive, it does not survive close scrutiny. Thus, for example, it became apparent to me in the course of considering the parenting matter that if [X] had minimal time with her father, it was as much because of the wife’s reluctance to allow more time, as it was due to any lack of availability on the husband’s part. I do accept that the husband’s child support was certainly minimalist, even though in accordance with the child support assessment, but the wife clearly had every opportunity to seek a review of the assessment but did not. The most important point, however, is that both the husband and the wife had access to substantial joint funds in the post-separation period. Thus, and as I have previously noted, at item 34 of her financial statement she indicates that the [R] Investment loan, which is on the balance sheet with a liability of $550,000, was used to meet any living expenses. The use of the [R] Loan account as a fund to meet the wife’s living expenses is confirmed in her evidence at paragraph 150 of her affidavit. In these circumstances, the claim for post-separation contribution is quite simply misconceived.
Overall conclusion about contribution
Even though I have assessed the husband’s greater contribution at the date of cohabitation to be 16 per cent, it does not necessarily follow that the same assessment of contribution would result at the date of trial. Indeed, I do not think it would be just and equitable to the wife to make a final finding in the husband’s favour at 66 per cent because this would ignore the passage of time, the myriad contributions that both of them have made both directly and indirectly. I think under the circumstances a final assessment of greater contribution on the husband’s part at 10 per cent is as just and equitable as it can be in the circumstances of this case. Accordingly, I conclude that the husband made a greater contribution which is assessed at the date of trial to be 10 per cent.
Section 75(2) considerations.
The wife submits that there should be a section 75(2) adjustment in her favour of 10 per cent, to reflect a number of factors that I will identify, and discuss below:-
(1) She seeks an adjustment based on her poor physical health which results in her having a lesser capacity for employment. There was no evidence in admissible form of the wife’s health problems, nor any other cogent evidence that would suggest she is incapable of working.
(2) The wife claims that due to her physical and mental capacity for appropriate gainful employment, there should be an adjustment in her favour. I find that the wife has chosen not to work for the last few years, other than managing her investments. There is no evidence of any incapacity either physically or mentally. In cross-examination the wife made some revealing admissions about her earning capacity. For example, it was put to her that her own evidence was that the [omitted] business was a successful one, and the wife reassured counsel for the husband that this was correct and that “it will be again”. In cross-examination about the representation that she made to ING about earning $9000 per calendar month, the wife insisted that she “could make that much money if I am well enough”. There is no substance to her submission that a 75(2) adjustment should be based on this factor. Indeed, I have no doubt that on the conclusion of these proceedings the wife will return to her former diligent, industrious, self.
(3) The wife says there should be an adjustment in her favour arising out of her care of [X], and also of [Y]. I accept this is the case. Moreover, I find that the child support paid by the husband to be minimalist, even if in accordance with his child support obligations. [Y] is the wife’s child from a previous marriage, and I accept that she is primarily responsible for his care.
(4) The wife submits that there should be an adjustment in her favour arising out of her commitment to support her mother, both legally and morally. However, both the husband and the wife have the legal obligation to the Commonwealth to financially support the wife’s mother. I do not accept that any moral obligation the wife feels towards her mother is a relevant section 75(2) consideration and even if it were, it is certainly not one to which I would attribute any weight given the clear benefits that both parties received during the marriage, and which the wife continues to receive since separation as a result of the grandmother residing with them.
(5) The wife asserts there are s.75(2) considerations operating in her favour arising out of the cramped circumstances in which they live in her unit in Property H. I do not accept that this is a relevant section 75(2) factor. In any event, the wife gave evidence that she intends to move, a matter which I believe will be unaffected by any order I make.
(6) The wife asserts there is a s.75(2) factor operating in her favour as a result of the contribution she has made to the income-earning capacity and property and financial resources of the husband, particularly whilst she supported him in his further studies. I accept there is some evidence about this, as there is evidence that the husband likewise supported the wife as she obtained further qualifications. I do not think, however, that an adjustment under section 75(2) is warranted arising from this.
(7) The wife submits that she has increased the husband’s capacity, and that therefore this should be reflected under section 75(2). This may well be the case but the evidence also clearly indicates that the marriage had a significant impact by way of increasing the wife’s earning capacity, a matter at least partly attributable to the husband. In these circumstances, no adjustment is warranted.
(8) Finally, the wife asserts that the amount of child support that the husband pays is minimal, and is likely to remain low because of the way in which he structures his financial affairs. Thus, an adjustment should arise in her favour. I have already commented on the low level of child support I believe the husband pays. I do not accept that this is unlikely to change, just because of how he has structured his affairs. The wife can seek a review of administrative assessment, especially if she believes that the husband’s real income for child support purposes is greater than asserted.
Of all the matters raised by the wife, the fact that she has the care of [X] carries the most weight.
Of course, the husband submits that he has his own section 75(2) considerations, the most weighty of which is that he is nearly 20 years older than the wife, a matter that limits his capacity to earn income into the future, in comparison to the wife. In addition, under section 75(2)(o) it is relevant to consider the support that the husband provided to the wife’s son [Y] throughout the course of the marriage, in circumstances where he had no legal obligation to do so.
An interesting feature of this case is that most of the parties’ current income is derived from investments that they passively manage. Even the husband’s income from personal exertion is only about half of his total earnings. The orders that I make may have an impact on this, for both parties.
Under section 75(2)(b) it is relevant to consider the financial resources that the wife has available to her by way of carried-forward tax losses in the trust, though I suspect this is largely offset by the capital gains tax liability that she will probably incur in relation to the Darwin unit.
On balance, I consider that notwithstanding the husband’s age, an adjustment under section 75(2) is called for arising out of the wife’s care for [X]. This will not be a significant one, however, because of the husband’s age, as well as the great untapped capacity to earn income that I believe the wife has, particularly when compared to the husband. I propose an adjustment of 2.5 per cent, which produces a five per cent differential in the pool.
A just and equitable order?
I have assessed the husband to have made greater contribution by
10 per cent, but to be offset by an assessment of section 75(2) considerations favouring the wife to the extent of 2.5 per cent. Overall this results in a final adjustment to the husband of 57.5 per cent.
The total pool of assets is $2,801,472. The husband’s share, 57.5 per cent, equates to $1,610,846. The wife’s share, 42.5 per cent, equates to $1,190,625. In each case, there has been some minor rounding off.
The husband seeks an order for payment to him of $300,000, and that he otherwise retain the unencumbered Property A properties. If the husband retains the items owned by him on the balance sheet, then his entitlement under these orders would be as follows:-
Husband Item No. Item Value 1 Home Unit $455,000 2 Home Unit $455,000 3 Home Unit $455,000 11 BMW $6,000 12 Furniture & Contents $10,000 13 Rentals $1,393 17 Legal Fees Paid $17,718 20 Mortgage -$38,000 22 Super $3,076 Sub total $1,365,187
As the husband’s entitlement is $1,610,846 the wife would need to pay to him $255,659.
The wife sought an order that the matrimonial pool be divided as to
65 per cent to her, excluding property owned by the [Ms Hadden] Family Trust which, I note, is not on the balance sheet in any event. If the wife were to retain all of the items on the balance sheet except for the ones referred to above, and notionally treating as hers any assets owned by the [G] Family Trust, then the result of her being required to make a payment to the husband would be as follows:-
Wife Item No. Item Value 4 Property H Unit $520,000 5 Property K Unit $275,000 6 Property E $400,000 7 Property C $415,000 8 Property B $415,000 9 Property S $465,000 10 Investments $400,587 14 Shares $15,866 16 Legal Fees Paid $20,000 18 Mortgage -$960,000 19 Mortgage -$550,000 23 Super $29,795 Payment to Husband -$255,659 Sub total $1,190,589
I am satisfied that the proposed order is therefore as just and equitable as the circumstances permit. The wife is a very resourceful woman and I am confident about her ability to raise $255,659 within the 90 days proposed by the husband. If she cannot, then the order proposed by the husband seems a reasonable alternative, especially in the absence of any protest by the wife about the form of these orders, and also the absence of any alternative.
Orders
Accordingly, the parenting orders that I make are as follows:-
(1) That [X] born [in] 2004 (“[X]”) live with the mother other than when she is to spend time with the father as set out hereunder.
(2) That [X] spend time with the father as follows:
(a) During the school term from Saturday 9am until Sunday 6pm every alternate week commencing the Saturday following the date of these orders.
(b) Father’s Day of each and every year from 9 am until 6 pm, albeit at a time when [X] would be living with their mother.
(c) During school holidays for no less than 5 days to be agreed between the parties and the father be permitted to travel outside of the Sydney metropolitan area on these occasions.
(d) On Christmas Day from 9am until 9am Boxing Day in 2011 and each odd numbered year thereafter, unless otherwise agreed between the parties.
(e) On Boxing Day from 9am until 9am the following day in 2012 and each even numbered year thereafter unless otherwise agreed between the parties.
(3) Further order that:
(a) The party with whom [X] is living with at that time is to be responsible for the day to day decisions concerning her care, welfare and development.
(b) The parties are to have equal shared parental responsibility for [X], including but not limited to:
(i) The school or schools that she is to attend.
(ii) The religious instruction and upbringing of [X].
(iii)The medical treatment that she is to receive.
(iv)The sporting and other activities that [X] is to engage in that would occur when [X] is to spend time with the father.
(4) That order 2(a) is suspended:
(a) During such times as [X] is living with the mother during the school holidays.
(b) From 9 am until 6 pm on Mother’s Day of each and every year, albeit a weekend when [X] would be spending time with the father.
(5) That the father collect [X] from the mother’s residence at the commencement of the time when [X] is to live with him and that the father return [X] to the mother’s residence at the conclusion of her spending time with the father.
(6) That the mother provide the father with the following:
(a) The names and addresses of the [X]’s treating doctors and dentists.
(b) The dates of parent/teacher functions, sports carnivals and details of [X]’s extra-curricular activities.
(7) That each party immediately notify the other if [X] is seriously ill or is to be admitted into hospital at such times as [X] is living with that party.
(8) That at such times as either party takes [X] on holidays outside the Sydney area that that party provide the other party with the address and telephone number of where [X] will be staying.
(9) That each party cause the [X] to telephone the other party at least twice per week when the children are on holidays with that party.
(10) That the mother shall ensure the father is advised of any specialist appointments or medical appointments involving [X] so as to enable the father’s attendance and also so as to enable the father to obtain information from the treating specialist/doctor.
(11) That each party shall notify the other of any medical treatment or allied health care received by [X] whilst living with either parent.
(12) That each party shall notify the other of any change of their residential address or mobile telephone number and such notice is to be given within 24 hours.
(13) That neither party is to denigrate the other or allow any other person in that party’s household to do so in the hearing or presence of [X] nor allow any other third party to do so.
(14) That the Father shall communicate with the child via the telephone at reasonable times with reasonable frequency.
(15) That both parties be permitted to travel overseas with [X] provided that:
(a) The party wishing to travel with [X] provides no less than 2 months written notice to the other parent including a copy of the itinerary and return airline flight details.
(b) That the party wishing to travel with [X] provides to the other parent no less than 2 months prior to the intended travel date a certificate of travel insurance which must included health insurance and repatriation.
(c) That the party travelling with [X] shall initiate a telephone call not less than 2 times per week between [X] and the other parent.
The property orders that I make are as follows:-
(1)That the wife sign all documents and take all steps to cause the mortgage secured over the properties at 1 Property A, 2 Property A and 3 Property A to be discharged within 90 days of these orders.
(2)That the wife pay to the husband the sum of $255,659.00 within 90 days of these Orders.
(3)That the husband be declared the owner at law and in equity the properties known as at 1 Property A, 2 Property A and
3 Property A.(4)Contemporaneously with order 1 hereof and upon payment by the wife to the husband of the amount in order 2 hereof, the husband shall sign all documents and do all things to transfer to the wife all his right, title and interest in [G] Pty Ltd.
(5)That the husband be declared the owner and the wife to have no claim upon:
(a)All other property registered in his name;
(b)All motor vehicles and items of personal possession presently held by him.
(6)That the wife be declared the owner and the husband have no claim upon:
(a)All other property registered in her name;
(b)All motor vehicles and items of personal possession presently held by her.
(7)In the event that the wife fails to pay to the husband the sum specified in order 2 herein within 90 days then the husband and the wife in their capacity as directors of the Trustee of the [G] Family Trust shall do all acts and things and sign all documents necessary to cause the sale of the property known as [address omitted] Darwin NT (having Folio Identifier Lot [omitted]) (“Darwin property”) and the proceeds of sale to be disbursed as follows:
(a)In payment of any agents fees and conveyancing fees in respect to the sale.
(b)In payment of a mortgage secured against the property.
(c)In payment to the husband the sum of $255,659.00 plus interest calculated pursuant to the Family Law Rules.
(d)The balance to the [G] Family Trust.
(8)In the event of the subject property by private treaty has not been effected within a period of three (3) months of listing of the property in accordance with order 7 herein, then the parties shall make all such arrangements and do all such acts and sign all such documents and cause the [G] Family Trust to pay all monies necessary to procure a sale by public auction of the Darwin property upon the following terms:
(a)The auctioneer shall be as agreed between the parties;
(b)The auction shall take place within a period of one (1) month after the deadline date for sale by private treaty;
(c)The reserve price shall unless agreed upon by the parties be as proposed by the auctioneer;
(d)The applicant wife and respondent husband shall cause the [G] Family Trust to pay expenses payable before the real property is auctioned.
(e)That the balance of sale proceeds obtained thereafter be disbursed in accordance with Orders 7(a) to (d) above.
(9)That there be liberty to relist the matter before Federal Magistrate Altobelli on 7 days notice as regards the interpretation, implementation and enforcement of these orders.
Costs
An application for costs may arise as a result of the orders that I make, and the publication of these reasons. If any party wishes to apply for costs, this should be done by way of written submissions filed within the next 21 days, but not exceeding 500 words in length. Any submissions in reply should be filed within a further 21 days, and should likewise not exceed 500 words in length.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 5 May 2011
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