FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lawrie & Lawrie [2023] FedCFamC2F 1556
File number(s): MLC 6044 of 2022 Judgment of: JUDGE GLASS Date of judgment: 6 December 2023 Catchwords: FAMILY LAW - PARENTING – whether 11 year old should spend specified time with her father or only in accordance with her wishes.
FAMILY LAW - PROPERTY – treatment of liabilities – whether husband should be solely responsible for liabilities incurred in the period after separation – whether Division 7A taxation obligations can be ignored – whether initial contributions should be ignored because of subsequent losses incurred by the parties – extent of adjustment where husband will principally retain shareholding in his business which has been valued solely by reference to its future maintainable earnings.
FAMILY LAW - CHILD SUPPORT – whether it is in the interests of the parties and children to consider making a departure order – whether husband should be ordered to make non-periodic payments for education and medical expenses.
FAMILY LAW - SPOUSAL MAINTENANCE – whether husband has the capacity to maintain the wife
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 123, 124, 125
Family Law Act 1975 (Cth) ss 4AB(1), 60B, 60CA, 60CC, 61DA, 65DAA, 72, 74, 75, 79, 81, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 5.01
Cases cited: Af Petersens & Af Petersens (1981) FLC 91-095
Atwill & Atwill (1981) FLC 91-107
Biltoft & Biltoft (1995) FLC 92-614
Candle & Falkner (2021) FLC 94-069
NHC & RCH (2004) FLC 93-204
Cornett & Hext (2021) FLC 94-067
Crick & Bennett (2018) FLC 93-832
C & C (2005) FLC 93-212
Denham & Newsham (2021) FLC 94-043
Dickons & Dickons (2012) 50 Fam LR 244
DJM v JLM (1998) FLC 92-816
Elei & Dodt (2018) FLC 93-841
Frederick & Frederick (2019) FLC 93-900
French & Fetala [2014] FamCAFC 57
Holland & Holland (2017) FLC 93-798
Holman & Bates (2022) FLC 94-103
Isles & Nelissen (2022) FLC 93-092
Jabour & Jabour (2019) FLC 93-898
Keane & Keane (2021) 62 Fam LR 190
M & M [1998] FamCA 42
Maclean & Greenwood (2022) FLC 94-117
Marcin & Marcin (2020) FLC 93-956
Maroney & Maroney [2009] FamCAFC 45
Murphy & Murphy [2007] FamCA 795
Prince & Prince (1984) FLC 91-501
Rodgers & Rodgers (2016) FLC 93-703
Rodgers & Rodgers (No 2) (2016) FLC 93-712
Rosati & Rosati (1998) FLC 92-804
Roverati & Roverati (2021) FLC 94-027
Stanford v Stanford (2012) 247 CLR 108
Tibb & Sheean (2018) 58 Fam LR 351
Trevi & Trevi (2018) FLC 93-858
Vigano & Desmond (2012) FLC 93-509
Division: Division 2 Family Law Number of paragraphs: 201 Date of last submission/s: 22 November 2023 Date of hearing: 20-22 November 2023 Place: Melbourne Counsel for the Applicant: Mr Puckey KC Solicitor for the Applicant: Mazzeo Lawyers Counsel for the Respondent: Ms Smallwood SC Solicitor for the Respondent: Lander & Rogers ORDERS
MLC 6044 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
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- [2023] FedCFamC2F 1556
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CaseChat Overview and Summary
The court found that equal shared parental responsibility was in the best interests of the children, with specific arrangements for time-sharing and communication between the children and their father. It was also ordered that the father must refrain from alcohol and illegal substances during his time with the children. For property division, the court ordered the husband to pay a lump sum to the wife and transfer certain assets, while the wife was to relinquish her interests in various entities and trusts. Additionally, the court ruled on the division of superannuation, with the wife to receive a specified percentage of the husband's entitlements. Child support was to be paid by the husband for educational and medical expenses, and spousal maintenance was ordered until certain property settlements were made.
The final orders discharged previous parenting orders and established new arrangements for the children's residence, time-sharing with their father, and communication between parents. The court also outlined specific conditions for interstate and overseas travel with the children. Property settlements included a lump sum payment, transfer of assets, and specific conditions for the management and sale of a property in Suburb D. Superannuation entitlements were to be split according to the court's calculations, and child support and spousal maintenance payments were also detailed in the orders. All other pending applications were dismissed.
Orders
Orders of the court
MLC 6044 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR LAWRIE
Applicant
AND:
MS LAWRIE
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
Parenting
1. All previous parenting orders be discharged.
2. The parties have equal shared parental responsibility for X, born in 2007, Y, born in 2008 and Z, born in 2012.
3. The children live with the Wife.
4. Y and X spend time and communicate with the Husband in accordance with their wishes and views.
5. Z spend time with the Husband as follows:
(a) each alternate Sunday from 10:00am until the commencement of school on Monday;
(b) each alternate Tuesday from after school until 7:30pm; and
(c) at such other times as agreed between the Husband and Wife in writing.
6. That the children live with the parties over the Christmas period as follows:
(a) In odd years:
(i) with the Husband from 9:00am until 9:00pm on 24 December; and
(ii) with the Wife from 9:00pm on 24 December until 4:00pm on 25 December;
(b) In even years:
(i) with the Wife from 9:00am until 9:00pm on 24 December; and
(ii) with the Husband from 9:00pm on 24 December until 4:00pm on 25 December.
7. Unless otherwise agreed between the Husband and Wife in writing, all changeover for all time detailed in paragraphs 4 to 6 shall take place at the children's schools at all school times and at all non-school times, whichever parent has care of the children shall deliver the children to the home of the other parent.
8. For twenty-four (24) hours immediately prior to the commencement of any time spent with the children (including any period during which the children live with him), and during all such time spent, the Husband be and is hereby restrained by injunction from ingesting, consuming, using or otherwise being under the influence of, alcohol or any legal or illegal drug or substance, save and except for:
(a) any legal medication prescribed for the relevant party by a registered medical practitioner, and taken or used by the relevant party strictly in accordance with such prescription; and
(b) any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine) and taken or used by the relevant party strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
9. The parent with whom the children are living will facilitate communication with the other parent via text message, electronic messaging, telephone, or video conference at all reasonable times as requested by the children or either of the parties.
10. That except in the case of an emergency, (where the parent having the care of the children will notify the other parent immediately), the parents will communicate and keep each other informed in a timely manner as to:
(a) major long-term issues in relation to the children;
(b) all medical appointments and medical issues;
(c) any interstate or overseas travel issues;
(d) major extra-curricular activities and sporting events for the children;
(e) children's birthday parties, or any other social events, that fall on the other parent's time;
(f) any concerns they may have regarding the children;
(g) any concerns that the children may raise with them; and
(h) any other important issues.
11. The parents will communicate in a timely manner in regard to all parenting arrangements, including the above matters described in paragraph 10 herein in writing via an agreed Parenting Application in so far as is practicable.
12. The parents will keep each other informed forthwith as to their residential addresses, telephone numbers and email addresses.
13. Each parent be permitted to attend any school events or activities that parents would ordinarily be expected and invited to attend, including but not limited to school assemblies, parent/ teacher evenings and school carnivals.
14. Each parent be permitted to contact the schools where the children attend to request they provide them with copies of any school reports, reports on behavioural issues, school circulars or notices concerning functions, parent / teacher nights, school photographs and other school activities to which parents would ordinarily be expected and invited to attend, including but not limited to all extra-curricular activities, sporting activities and events.
15. The parties consult in writing and make a joint decision about any changes to the extracurricular and/or sporting activities that the children attend.
16. The parties will not enrol the children into extracurricular and/or sporting activities or organise social engagements that fall during the children's time with the other parent without written agreement between the parties.
17. Both parties are at liberty to attend any school events, extracurricular and sporting events that the children participate in.
18. Both parents be at liberty to speak to any education or extra-curricular activity provider, or health care provider associated with the children and obtain all information relating to the children and, where necessary, each parent will provide the other parent relevant details of the service provider including name, addresses and contact telephone numbers.
19. The Husband and X engage with a family therapist for the purpose of therapeutic counselling.
20. In the event that either parent seeks to take the children on an interstate or overseas holiday during his or her scheduled time with the children, or as is otherwise agreed in writing, they will use their best endeavours to give each other 7 days' notice of their intention to travel interstate and 30 days' notice for international travel, and shall provide an itinerary to the non-travelling parent, which will include:
(a) return flight information;
(b) travel insurance which covers COVID-19 travel requirements;
(c) details of any other persons to be attending the planned holiday or organised to be met by the children on holidays; and
(d) accommodation and contact details for the duration of holiday.
21. Both parties do all such things and sign all such documents as may be necessary to ensure that the children have a current Australian passport at all times.
22. The associated costs of the children's passport being renewed be shared equally between both parties.
23. The children's passport is held by the party who the children last travelled overseas with and must be exchanged within seven days of request made under paragraph 20 herein for overseas travel.
24. Neither parent will denigrate or criticise the other parent in the presence or hearing of the children or allow anyone else to denigrate or criticise the other parent within the presence or hearing of the children.
25. The parties be at liberty to provide a copy of the family report of Ms C to any of the professionals working with any of the children, the parties, or the family.
Property
26. The Husband pay, or cause to be paid on his behalf, to the Wife the sum of $1,448,852 (“the Payment”) by no later than 23 June 2024.
27. Contemporaneously with the Payment:
(a) the Wife do all acts and things and sign all documents necessary to transfer to the Husband and/or his nominee the whole of her right, title and interest in the real property situate at B Street, Suburb D in the State of Victoria, being the whole land more particularly described in certificate of title Volume … Folio … ("the Suburb D property") at the Husband's expense (save for the Wife's legal, conveyancing or PEXA fees); and
(b) the Husband and Wife do all acts and things and sign all necessary documents to refinance the mortgages in favour of the National Australia Bank over the Suburb D property out of the Wife's name, and that the Husband and Wife do all things necessary to enable the Wife to be released from any guarantee given to the National Australia Bank over the Suburb D property.
28. In the event the Payment is not made by 23 June 2024:
(a) the Wife and the Husband in his capacity as director of E Pty Ltd forthwith do all such acts and things and sign all necessary documents to sell the Suburb D property (“the Sale”);
(b) unless otherwise agreed between the Husband and the Wife in writing, the terms and conditions of the Sale include:
(i) the sale be by public auction;
(ii) the reserve price be set at $7,800,000 or as otherwise agreed between the parties in writing;
(iii) the Wife appoint the selling agent and the parties jointly instruct such agent;
(iv) the Wife appoint the conveyancer and the parties jointly instruct the conveyancer;
(c) liberty be reserved to the parties to apply with respect to the terms and conditions of the sale in default of agreement;
(d) upon completion of the Sale, the proceeds of sale be applied as follows:
(i) firstly, to meet all sale costs, commissions and expenses of the sale and selling agents;
(ii) secondly, to discharge the mortgage secured on the Suburb D Property;
(iii) thirdly, to quarantine the amount payable for Capital Gains Tax ("CGT"), if any; and any liability under Division 7A of the Income Tax Assessment Act 1936 (Cth) and such tax to be calculated jointly by the accountants for the Husband and the accountants for the Wife and upon assessment paid;
(iv) fourthly, to meet any outstanding land tax on the Suburb D Property;
(v) fifthly, to meet the Husband's personal income tax liability for the 2022 and 2023 financial years and the Wife's personal income tax liability for the 2022 and 2023 financial years;
(vi) sixthly, the sum of $377,217 to the Husband on account of mortgage arrears, his credit card, school fees and personal liability to his mother for which he will be responsible;
(vii) seventhly, such sum required to equate to 67.5% of the sum of the balance then remaining and $399,770, being the remaining value of the Lawrie Group, to the Wife; and
(viii) finally, the balance then remaining to the Husband.
29. Contemporaneously with the Payment, the Wife, at the expense of the Husband, do all acts and things and sign all documents prepared at the direction of the Husband to:
(a) resign from any office held by her in any entity associated with the parties and renounce, abandon and disclaim any rights, powers or entitlements which she might otherwise have, including but not limited to the following:
(i) E Pty Ltd;
(ii) F Pty Ltd;
(iii) G Pty Ltd;
(iv) Lawrie Pty Ltd;
(v) Lawrie Investments Pty Ltd;
(vi) Lawrie Superannuation Pty Ltd;
(vii) L Pty Ltd;
(collectively referred to as "the entities")
(b) renounce, abandon and disclaim any rights, powers or entitlements which she might have pursuant to the discretionary trust deed of the Lawrie Family Trust ("the family trust"), including resigning from her position as Appointer, Trustee, Beneficiary or Guardian of the family trust;
(c) renounce, abandon and disclaim any rights, powers or entitlements which she might have pursuant to any of the following unit trusts:
(i) N Unit Trust;
(ii) Lawrie Unit Trust;
(iii) N Unit Trust;
(iv) O Unit Trust;
(v) P Unit Trust;
(collectively referred to as "the unit trusts")
(d) transfer to the Husband or his nominee all shares held by her in any of the entities;
(e) transfer to the Husband or his nominee all units held by her in any of the unit trusts; and
(f) assign to the Husband the benefit of any asset or liability loan accounts she may currently have in any of the entities, the family trust or the unit trusts.
30. Until either the Payment is made or settlement of the Sale of the Suburb D property, the Husband or his nominated entity:
(a) receive all rental income from the Suburb D property;
(b) pay all rates, taxes and apportionable outgoings and insurance premiums payable as and when they fall due;
(c) pay all costs necessary to keep the property insured at the current level of cover;
(d) pay all instalments pursuant to the relevant mortgage encumbering it; and
(e) the parties personally, and the husband in his capacity as director of E Pty Ltd, are restrained from encumbering or further encumbering the Suburb D Property without the written consent of the other party.
31. The Husband, at his expense, do all such things, and sign all such documents as are required to indemnify the Wife, and keep her indemnified in relation to all past, present and future liabilities of the Husband, the entities, the unit trusts and the family trust including all unpaid taxation assessed or hereafter assessed, against the Wife, in relation to the entities, the unit trusts and the family trust.
Superannuation
32. The Husband and the Wife in their capacity as directors of Lawrie Superannuation Pty Ltd, as the trustee (“the Trustee”) of the Lawrie Self-Managed Superannuation Fund (“the Fund”) hereby acknowledge that the Trustee of the Fund has been accorded procedural fairness in relation to the making of these orders.
33. Paragraphs 34 to 42 inclusive are binding upon the parties in their capacities as directors of the Trustee of the Fund.
34. In accordance with section 90XT(1)(c) of the Family Law Act 1975 (Cth) (the Act)
(a) the Wife is to be paid the specified percentage of each splittable payment out of the Husband's interest in the Fund using the following equation:
X = 75% (H +W) – W
Where:
X= the wife's entitlement
H = the Husband’s entitlement in the Fund at the operative date
W = the Wife’s entitlement in the Fund at the operative date;
(b) the Husband's entitlement to payments out of the Wife's interest in the Fund is correspondently reduced by force of this order.
35. The specified percentage for the purposes of paragraph 34 hereof is 75%.
36. The parties in their capacities as directors of the Trustee shall forthwith do all things necessary and sign all such documents as are required to:
(a) calculate in accordance with the requirements of the Act and the Regulations the Payment Split to be awarded to the Wife in paragraph 34 herein; and
(b) make the Payment Split whenever the Trustee makes a splittable payment out of the Husband’s superannuation interest in the Fund.
37. Paragraphs 34 to 36 inclusive take effect from the operative date which is 4 days after service of the Orders on the Fund.
38. For the purposes of these orders:
(a) the Wife's entitlement will comprise 75% of the total assets of the fund comprised of a rollover of her entitlement in the fund and a split of the Husband's entitlements (the Wife's entitlement);
(b) the Wife's entitlement be paid to a new fund nominated by the Wife (The Wife's new fund);
(c) on or before the expiration of 30 days from the date of these orders, the parties do all things necessary and sign all such documents as may be required to transfer the Wife's entitlement to the Wife's new fund;
(d) the Wife notifies the Fund of the name of the Wife's new fund within 7 days of the date of these orders and provide the necessary documentation to enable the rollover of the Wife's entitlement to be effected;
(e) that until the rollover of the Wife's entitlement to the Wife's new fund is effected, save for compliance with these orders, the parties be restrained from dealing with the Fund's assets without the prior written consent of the other party; and
(f) the accountants to administer the superannuation split be both the Husband's accountants, O Company, together with the Wife's accountants, Q Company.
39. Within 7 days of receipt by the Trustee of the request made by the Wife as contemplated in paragraph 38(d) herein, the Trustee cause a meeting of the Fund to be held in accordance with the rules of the Fund Trust Deed, with the purpose of that meeting being:
(a) to note receipt of the request by the Wife to transfer the Wife’s entitlement to the Wife’s new fund; and
(b) to authorise the transfer to the Trustees of the Wife’s new fund of the Wife’s Entitlement with the parties in their capacities as directors of the Trustee to do all things and sign all documents necessary to transfer the shares and the adjusted cash amount to the Wife’s new fund.
40. That pending the implementation of paragraphs 34 to 39 inclusive:
(a) each party be and is hereby restrained from dealing with, charging, encumbering or disposing of any item of property, investment, shares or cash or any other assets of whatsoever nature of the Fund, other than in accordance with the terms of this order; and
(b) each party shall immediately revoke any binding death benefit nomination already made and each party be, and is hereby, restrained from:
(i) making any binding death benefit nomination in favour of a child described in regulation 13 of the Regulations;
(ii) making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and
(iii) doing any such act or thing which would defeat, extinguish, or reduce the entitlement of either party under this order.
41. Upon implementation of paragraph 34 to 39 inclusive of these orders, the Wife forthwith do all things necessary and sign all such documents as are required to:
(a) rollover the Wife's entitlement from the Fund to the Wife's new fund;
(b) at the expense of the Fund, resign as a director of the Trustee and transfer any shareholding to the Husband;
(c) resign as a member of the Fund;
(d) remove herself as a signatory to any bank accounts; and
(e) relinquish all claim and entitlement, past, present, and future in relation to the Fund.
42. Contemporaneously with the Wife's compliance with her obligation under paragraph 41 of these orders, the Husband indemnify and shall keep the Wife indemnified against all liabilities of and in relation to the Fund including taxation payable in respect of the Fund and all other liability of, or howsoever arising in relation to the Fund.
Other property
43. The Wife retain all of her personal belongings along with furniture and chattels currently in the former matrimonial home save and except for the items listed in Annexure "A" attached to these orders which the Wife shall make available for collection by the Husband within 7 days from the date of these orders.
44. The Husband is otherwise declared the sole legal and beneficial owner of, and absolutely entitled to, all items of personal property, real property, financial resources and superannuation in his possession, under his control, or which he is the registered proprietor as at the date of these orders including but not limited to:
(a) the shares in the entities;
(b) the Lawrie Family Trust;
(c) the business known as F Pty Ltd;
(d) Motor Vehicle 1;
(e) Motor Vehicle 2;
(f) the interest held in:
(i) P Unit Trust;
(ii) Lawrie Unit Trust;
(iii) N Unit Trust;
(iv) O Unit Trust;
(v) P Unit Trust;
(vi) E Pty Ltd;
(vii) F Pty Ltd;
(viii) G Pty Ltd;
(ix) Lawrie Pty Ltd;
(x) Lawrie Investments Pty Ltd;
(xi) Lawrie Superannuation Pty Ltd;
(xii) L Pty Ltd;
(g) subject to paragraphs 34 to 35 inclusive, the Husband's remaining entitlement in the Lawrie Self-Managed Superannuation Fund;
(h) all insurance policies that cover property owned by the Husband as at the date of these orders;
(i) any present or future expectation under a trust or Estate;
(j) subject to the Payment, the whole of his right, title, and interest in the Suburb D property; and
(k) cash held in the following bank accounts:
(i) R Bank account ending #...09;
(ii) S Bank account ending #...58;
(iii) NAB account ending #...37;
(iv) T Bank account ending #...98;
(v) NAB account ending #...33;
(vi) NAB account ending #...55;
(vii) NAB account ending #...72;
(viii) U Bank account ending #...76;
(ix) U Bank account ending #...59;
(x) NAB account ending #...03; and
(xi) NAB account ending #...73.
45. The Wife is otherwise declared the sole legal or beneficial owner of, and entitled absolutely to, all items of personal property, real property, financial resources and superannuation, in her possession, under her control or of which she is the registered proprietor as at the date of these orders, including but not limited to:
(a) cash held in the following bank accounts:
(i) ANZ account ending #...56;
(ii) ANZ account ending #...09; and
(iii) ANZ account ending #...64.
46. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) each party be solely entitled to the exclusion of the other party to all property (including choses-in-action and superannuation) in the possession of such party at this date;
(b) all insurance policies to become the sole property of the beneficiary named therein;
(c) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(d) each party be solely liable for and indemnify the other in respect of their individual debts;
(e) each party be solely entitled to the exclusion of the other party of monies standing to the credit of their respective bank accounts with any joint accounts being the property of the Husband;
(f) each party relinquish to the other and forego any claim they may have to any superannuation benefits belonging to or earned by the other; and
(g) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Child Support
47. Pursuant to section 124 of the Child Support (Assessment) Act 1989, the Husband pay direct to the provider or within seven (7) days of the provision of receipts from the Wife to the Husband, the following by way of child support in a form other than periodic support for the children, until each of the children attain 18 years of age or complete their secondary schooling, whichever is the later:
(a) 100% of educational costs for the children at their current schools or such other school as agreed between the parties, including but not limited to school fees (inclusive of arrears and late fees), uniforms, footwear, books, stationery, computer equipment, excursions, agreed intra-curricular activities, camps, compulsory sport, and other activities, IT needs and laptops;
(b) 100% of agreed private tuition costs for the children as required from time to time;
(c) 100% of extracurricular activities including but not limited to fees, uniforms, equipment and shoes;
(d) private health insurance at the current rate and level of cover; and
(e) 100% of the out of pocket and non-rebateable hospital, medical, dental, orthodontic, allied health, and prescribed pharmaceutical expenses for the children;
with such payments not to reduce the annual rate of child support payable by the Husband under any relevant administrative assessment.
Spousal Maintenance
48. Until the Payment, the Husband pay or cause to be paid to the Wife the following:
(a) the sum of $1,000 per week in cash to an account nominated by the Wife; and
(b) the reasonable outgoings with respect to the Wife’s home as and when they fall due, including but not limited to monthly rent capped at $1,200 per week, utilities, internet and other subscriptions, mobile telephones of the Wife and children, and pool maintenance and servicing as and when they fall due.
49. All extant applications are dismissed.
Annexure "A"
1. Cordless drill;
2. Artwork 1;
3. Artwork 2;
4. Artwork 3;
5. Artwork 4;
6. Artwork 5;
7. Artwork 6;
8. Artwork 7;
9. Artwork 8;
10. Artwork 9;
11. Artwork 10;
12. Table;
13. Tools;
14. Large mirror;
15. Two (2) planter pots in rear yard;
16. Mr Lawrie’s antique table; and
17. Mr Lawrie’s antique.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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