Henley and Upton
[2007] FamCA 136
•14 February 2007
FAMILY COURT OF AUSTRALIA
| HENLEY & UPTON | [2007] FamCA 136 |
| FAMILY LAW - Interim children’s orders - Procedural orders |
| Family Law Act 1975 (Cth) |
| APPLICANT: | MS HENLEY |
| RESPONDENT: | MR UPTON |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLF | 2429 | of | 2005 |
| DATE DELIVERED: | 14 FEBRUARY 2007 |
| PLACE DELIVERED: | MELBOURNE |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 14 FEBRUARY 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR McFARLANE |
| SOLICITOR FOR THE APPLICANT: | McCLUSKYS |
| COUNSEL FOR THE RESPONDENT: | MR MELILLI |
| SOLICITOR FOR THE RESPONDENT: | TAUSSIG CHERRIE & ASSOCIATES |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | MS AGRESTA |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | VICTORIA LEGAL AID |
Orders
PARENTING ORDERS
THAT all previous parenting Orders relating to the children of the marriage O born in August 1999 and G born in June 2001 be discharged.
THAT the parties have equal shared parental responsibility for the children.
THAT until further order or until 15 November 2007 the children live with the parties as follows during all school terms and all school term holidays:
3.1with the wife from the conclusion of school Friday or 3.30 p.m. if Friday is a non-school day until the commencement of school on the following Friday or 9.00 a.m. if Friday is a non-school day commencing 23 February 2007;
3.2with the husband from the conclusion of school Friday or 3.30 p.m. if Friday is a non-school day until the commencement of school on the following Friday or 9.00 a.m. if Friday is a non-school day commencing on 16 February 2007;
3.3for half of the long summer holidays at times and on dates to be agreed between the parties and in default of agreement as follows:
3.3.1commencing in 2007 and each alternate year thereafter with the wife for the first half and with the husband for the second half;
3.3.2commencing in 2008 and each alternate year thereafter with the husband for the first half and with the wife for the second half;
3.4the children reside with the husband from 5.00 p.m. the Saturday immediately preceding Father’s Day until 5.00 p.m. on Father’s Day in the event that such day falls on a weekend when the children are living with the wife;
3.5the children reside with the wife from 5.00 p.m. the Saturday immediately preceding Mother’s Day until 5.00 p.m. on Mother’s Day in the event that such day falls on a weekend when the children are living with the husband.
THAT forthwith the parties do all things and sign all documents necessary to obtain a passport for the child G and thereafter the husband retain possession of G’s passport and the wife retain possession of O’s passport.
THAT each party be permitted to travel overseas with the children for the purpose of a holiday during their respective periods of residence of the children and the other party not unreasonably withhold consent to such travel.
THAT in the event that either party is unable to care for the children for an overnight period or longer, then the other party be given first option to care for the children.
THAT for a period of nine (9) months from the date of these orders the parties continue to see Mr P on a six (6) weekly basis or as otherwise agreed with Mr P for counselling for relationship and parenting issues and for assistance with the implementation of a behaviour management plan for their children and the cost of such counselling be shared equally between the parties.
THAT the counselling referred to in the preceding order be on a non confidential and reportable basis and the Independent Children’s Lawyer be at liberty to request a written report or reports, as to the parties progress from time to time, the cost of such reports, if requested, to be shared equally between the parties.
THAT for a period of nine (9) months from the date of these orders, and within 36 hours of a direction in writing from the Independent Children’s Lawyer, the parties submit a urine sample under supervised conditions to their respective medical practitioner or pathologist for analysis for the detection of illicit drugs, and each party authorise their medical practitioner or pathologist to provide the results of such screens directly to the Independent Children’s Lawyer and the other party.
THAT the Independent Children’s Lawyer be at liberty to direct the parties to submit to urine screens pursuant to the preceding paragraph on a random basis save that there be no more that two (2) such directions within any calendar month.
THAT in the event that either party fails to submit to a urine screen within 36 hours of receipt by the party or the party’s lawyer of a written direction from the Independent Children’s Lawyer, or in the event that either party returns a urine screen which shows the presence of any illicit drugs, that party’s time with the children pursuant to these orders be and remain suspended until that party provides the Independent Children’s Lawyer and the other party three (3) consecutive urine screens in a three (3) week period, which screens show a negative result to all illicit drugs.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THAT all extant children’s applications be adjourned to Monday 19 November 2007 at 10.00 a.m. in the Judicial Duty List.
PROPERTY ORDERS
THAT all previous orders relating to financial matters including any order for costs be discharged.
THAT the Husband pay to the wife the sum of $120,000 (“the payment”) on or before the 14 March 2007 (“the date”).
THAT contemporaneously with the payment the wife transfer to the husband (at the husband’s expense) all her right title and interest in the real property situated at and known as E (the ‘E property”) and provide to the husband a withdrawal of caveat in registerable form.
THAT the Husband refinance the mortgage currently encumbering the E property and be liable for and indemnify the Wife against all payments and liability for the said mortgage or other encumbrance affecting the E property and indemnify the Wife for all rates, taxes and outgoings of or with respect to the said E property of whatsoever nature and kind.
THAT in the event that the whole of the payment has not been made by the date then the E property forthwith be sold altogether out of Court ("the sale") and upon completion of the sale, the proceeds of the sale be applied:
18.1 first to pay all costs, commissions and expenses of the said sale;
18.2secondly to discharge the mortgage and any other encumbrance affecting the said property;
18.3thirdly so much of the payment as is then outstanding together with interest thereon at the rate of eleven per centum (11%) per annum adjusted monthly from the date to the Wife;
18.4fourthly the balance to the Husband.
THAT pending the payment or completion of the sale:
19.1the husband have the sole right to occupy the E property and during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the E property as they fall due;
19.2the parties hold their respective interest in the E property upon trust for the parties pursuant to these Orders; and
19.3neither party encumber the E property without the consent in writing of the other party.
THAT the Husband be liable for and indemnify the wife and keep the wife indemnified against all payments in respect of any monies owing to:
20.1the husband’s parents;
20.2the husband’s sister; and
20.3Dr L.
THAT the Wife be liable for and indemnify the husband and keep the husband indemnified against all payments in respect of any monies owing to her parents.
THAT by way of a Departure Order all arrears of child support owing by the wife to the husband be discharged.
THAT pursuant to s.117 of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of child support payable by either the husband or the wife for the children as follows:
23.1for the period from the date of these orders until the youngest child attains the age of 18 years (29 June 2019), the annual rate of child support for either the husband or the wife will be set at Nil.
THAT Order 23 remain in force as long as the parties continue to share the care of the children equally and continue to support the children whilst the children are in their respective care.
THAT unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
25.1each party be solely entitled to the exclusion of the other to all property (including choses-in-action) and superannuation in the possession of such party as at the date of these orders. The furniture, personal possessions and like chattels in the E property are considered to be in the possession of the Husband;
25.2money standing to the credit of the parties in any joint bank account is to become the property of the husband and any joint account forthwith be closed;
25.3all insurance policies to become the sole property of the owner named therein;
25.4each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
25.5any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
THAT the ex tempore reasons for judgement be transcribed and remain on the court file and a copy be made available to the parties.
THAT any subpoenaed documents be returned by the Subpoena Clerk at the Melbourne Registry to the person or organization producing the documents to this court.
THAT each party pay their own costs of and incidental to these proceedings.
THAT the applications of the Husband and the Wife respectively in so far as they relate to property matters be otherwise dismissed and be removed from the List of Cases awaiting Trial.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for all parties.
IT IS NOTED:
A.THAT the parties intend these Orders are to be finalised on 19.11.2007, at which time the order for the Independent Children's lawyer be discharged.
B.THAT these proceedings were part of the February 2007 Blitz but at the request of counsel and the parties and in light of the written report of Mr P dated 14 February 2007, interim parenting orders were pronounced specifically to enable a ten (10) month period of observation and ongoing relationship and parenting counselling and assistance by Mr P in relation to the implementation of a behaviour management plan for the children.
C.THAT the parties intend these orders as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 2429 of 2005
| MS HENLEY |
Applicant
and
| MR UPTON |
Respondent
and
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
In the matter of Henley & Upton, dealing firstly with the children's orders and having read the supplementary and very recent report from Mr P, it is appropriate that the orders be made on an interim basis. That does to my mind meet the requirement of putting the best interests of the two children - O, aged seven; and G, aged five and a half - to the fore. I do not propose to touch on the various matters in the affidavit material or in the reports of Dr L or Mr P.
The parties need to strictly comply with their obligations under these orders. What I propose on children's matters is to require an order to be part of these orders adjourning all extant children's applications to the judicial duty list on Monday, 19 November 2007 at 10 .00 a.m. The expectation on that day is that the orders will be made absolute, the independent children's lawyer will be discharged and there will be finality as between each of the parties.
Dealing with the property issues and having excused counsel appearing for the independent children's lawyer and her instructing solicitor, the basis of the proposal is a payment being made by the husband to the wife of $120,000 within 30 days and, contemporaneously, the property at E being transferred to the husband at his expense.
I have read the affidavits of the parties and of the various other witnesses and family who have filed material and also the financial statements. In the context of the family loans and the mortgage on title, what the wife is to receive is close to the agreed 50 per cent of net equity. There are a number of contributing financial issues and adjustments that are dealt with within these orders or within the proposed child support agreement.
Having regard to all of the history of this financial matter, the contributions, financial and non-financial made by the parties and the various factors under section 75(2), I conclude these orders are just and equitable. Accordingly, I do declare, pursuant to section 79(2) of the Family Law Act 1975 that these orders meet the standard of being just and equitable to both parties.
I have raised with counsel the drafting of the orders and in particular what is intended at the moment to comprise paragraphs 9.2, 9.3 and 9.4 and paragraph 10 hereof I have expressed the view to counsel and they have agreed that those matters can better be included within a child support agreement and accompanying notation to these orders. That is the outcome that I require and I propose to stand this matter over until next Tuesday at 9.45 am and there list the matter for mention before me. I excuse the parties from further attendance.
If necessary, I am content to have counsel, as may be agreed, present these orders to the court on the basis that the other counsel, including Ms Agresta, are aware of and wholly agree with all issues as redrafted.
I have indicated to counsel though that I propose to make final property orders in the form as submitted to the court but with the qualification that the orders are to be redrafted in respect of the matters outlined. I will therefore give the parties certainty by locking in the payment and the transfer and the subsequent consequential orders in relation to that property, the various loans and superannuation. I will finally pronounce orders by consent on all issues next Tuesday or when the orders are fully re-drafted and available.
I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young
………………………………………………………..
Associate:
Date: 5 March 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HENLEY & UPTON
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